1982 Federal Register / Vol. 89, No. 8 / Thursday, January 11, 2024 / Proposed Rules 

DEPARTMENT OF EDUCATION 

34 CFR Parts 75, 76, 77, 79, and 299 

RIN 1875–AA14 

[Docket ID ED–2023–OPEPD–0110] 

Education Department General 

Administrative Regulations and 

Related Regulatory Provisions 

AGENCY: Office of Planning, Evaluation 

and Policy Development, Department of 

Education. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Secretary of Education 

proposes to amend the Education 

Department General Administrative 

Regulations (EDGAR) and associated 

regulatory provisions to update the 

regulations and better align them with 

other U.S. Department of Education 

(Department) regulations and 

procedures. A brief summary of the 

proposed rule is available on 

Regulations.gov in the docket for the 

rulemaking. 

DATES: We must receive your comments 

on or before February 26, 2024. 

ADDRESSES: Comments must be 

submitted electronically via the Federal 

eRulemaking Portal at 

www.regulations.gov. However, if you 

require an accommodation or cannot 

otherwise submit your comments via 

http://www.regulations.gov, please 

contact the program contact person 

listed under FOR FURTHER INFORMATION

CONTACT. The Department will not 

accept comments submitted after the 

comment period closes. To ensure that 

we do not receive duplicate copies, 

please submit your comments only 

once. In addition, please include the 

Docket ID at the top of your comments. 

Information on using Regulations.gov, 

including instructions for accessing 

agency documents, submitting 

comments, and viewing the docket, is 

available on the site under ‘‘FAQ.’’ 

Note: The Department’s policy is 

generally to make comments received 

from members of the public available for 

public viewing in their entirety at 

www.regulations.gov. Therefore, 

commenters should be careful to 

include in their comments only 

information that they wish to make 

publicly available. Commenters should 

not include in their comments any 

information that identifies other 

individuals or that permits readers to 

identify other individuals. The 

Department will not make comments 

that contain personally identifiable 

information about someone other than 

the commenter publicly available on 

www.regulations.gov for privacy 

reasons. Therefore, commenters should 

be careful to include in their comments 

only information that they wish to make 

publicly available. 

FOR FURTHER INFORMATION CONTACT: 

Kelly Terpak, U.S. Department of 

Education, 400 Maryland Avenue SW, 

Room 4C212, Washington, DC 20202. 

Telephone: (202) 245–6776. Email: 

EDGAR@ed.gov. 

If you are deaf, hard of hearing, or 

have a speech disability and wish to 

access telecommunications relay 

services, please dial 7–1–1. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

Purpose of this Regulatory Action: 

The last major update to EDGAR was in 

2013. Given that EDGAR serves as the 

foundational set of regulations for the 

Department, we have reviewed EDGAR, 

evaluated it for provisions that, over 

time, have become outdated, 

unnecessary, or inconsistent with other 

Department regulations, and identified 

ways in which EDGAR could be 

updated, streamlined, and otherwise 

improved. Specifically, we propose to 

amend parts 75, 76, 77, 79, and 299 of 

title 34 of the Code of Federal 

Regulations. These changes are detailed 

in the Summary of Major Provisions of 

this Regulatory Action and the 

Significant Proposed Regulations 

section of this document. 

Summary of Major Provisions of this 

Regulatory Action: As discussed in 

greater detail in the Significant 

Proposed Regulations section of this 

document, the proposed regulations 

would: 

• Make technical updates to refer to 

up-to-date statutory authorities, remove 

outdated terminology, use consistent 

references, and eliminate obsolete crossreferences. 

• Align EDGAR with updates in the 

most recent reauthorization of the 

Elementary and Secondary Education 

Act of 1965 (ESEA). For example, 

updates to EDGAR would revise the 

tiers of evidence to incorporate and 

parallel those in the ESEA and would 

specify the procedures used to give 

special consideration to an application 

supported by evidence in § 75.226. 

• Clarify, streamline, and expand the 

selection criteria the Secretary may use 

to make discretionary awards under 

§ 75.210. 

• Clarify procedural approaches, such 

as those related to making continuation 

awards under § 75.253, and exceptions 

to the typical process for new awards 

under § 75.219, such as if a grant 

application had been mishandled. 

• Improve public access to research 

and evaluation related to Departmentfunded projects by requiring, under 

§§ 75.590 and 75.623, that each grantee 

that prepares an evaluation or a peerreviewed scholarly publication as part 

of the grant award or on the basis of 

grant-funded research make the final 

evaluation report or peer-reviewed 

scholarly publication available through 

the Education Resource Information 

Center (ERIC), which is current practice 

of the Department’s Institute of 

Education Sciences (IES). 

• Expand and clarify flexibility for 

the Department in administering its 

grants programs, including by— 

Æ Providing the Department the 

option to require applicants under grant 

programs to include a logic model 

supporting their proposed project under 

§ 75.112; 

Æ Replacing the definition in § 75.225 

of ‘‘novice applicant’’ with a broader 

definition of ‘‘new potential grantee,’’ to 

allow additional flexibility to give 

special consideration to such grantees 

and increase equity in the applicant 

pool and recipients of Department 

funds; 

Æ Allowing the Department to require 

a grantee to conduct an independent 

evaluation of their project and make the 

results of such an evaluation public 

under § 75.590; 

Æ Defining ‘‘independent evaluation’’ 

under § 77.1(c); 

Æ Clarifying under § 76.50 that, where 

not prohibited by law, regulation, or the 

terms and conditions of the grant award, 

States have subgranting authority; 

Æ Allowing States flexibility under 

§ 76.140 to adopt a process for 

amending a State plan that is distinct 

from the process used for initial 

approval; and 

Æ Clarifying the hearing and appeal 

process under § 76.401 for subgrants of 

State-administered formula grant 

programs, including by clarifying that 

aggrieved applicants must allege that a 

specific Federal or State statute or 

regulation has been violated. 

• Consolidating and clarifying 

regulations about participation of 

private school children, teachers, and 

other educational personnel in part 299. 

Costs and Benefits: The Department 

believes that the benefits of this 

regulatory action would outweigh any 

associated costs to States, local 

educational agencies (LEAs), and other 

Department applicants and grantees. 

The proposed regulations would, in 

part, update terminology to align with 

applicable statutes and regulations. 

Many of the adjustments would support 

the Department, its grantees, or both, in 

selecting high-quality grantees and to 

support those grantees in ensuring the 

effectiveness and continuous 


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improvement of their projects. These 

changes include, for example, adding 

potential selection criteria that apply 

only to programs that elect to use them, 

as announced in a notice inviting 

applications (NIA), and clarifying the 

language in selection criteria for 

applicants and peer reviewers. Please 

refer to the Regulatory Impact Analysis 

section of this document for a more 

detailed discussion of costs and 

benefits. Consistent with Executive 

Order 12866, as amended most recently 

by Executive Order 14094, the Secretary 

has determined that this action is 

significant and, thus, is subject to 

review by the Office of Management and 

Budget. 

Incorporation by Reference: Proposed 

§ 75.616 incorporates by reference the 

American Society of Heating, 

Refrigerating, and Air Conditioning 

Engineers (ASHRAE) Standard 90.1. 

ASHRAE is included in the construction 

section focused on energy conservation 

and has been included in EDGAR for 

over 30 years. The ASHRAE standards 

are the industry leading standards and 

are relevant to the construction 

regulations in this section of EDGAR 

because grantees need to know the 

current standard with which they must 

comply. Standard 90.1 has been a 

benchmark for commercial building 

energy codes in the United States, and 

a key basis for codes and standards 

around the world, for almost half a 

century. This standard provides the 

minimum requirements for energyefficient design of most sites and 

buildings, except low-rise residential 

buildings. It offers, in detail, the 

minimum energy efficiency 

requirements for design and 

construction of new sites and buildings 

and their systems, new portions of 

buildings and their systems, and new 

systems and equipment in existing 

buildings, as well as criteria for 

determining compliance with these 

requirements. It is an indispensable 

reference for engineers and other 

professionals involved in design of 

buildings, sites, and building systems. 

This standard is available to the public 

at www.ashrae.org/technical-resources/ 

bookstore/standard-90-1. 

Proposed § 77.1 incorporates by 

reference the What Works 

Clearinghouse (WWC) Procedures and 

Standards Handbook, Version 5.0. The 

purpose of the What Works 

Clearinghouse is to review and 

summarize the quality of existing 

research in educational programs, 

products, practices, and policies. We 

incorporate the Handbook, which 

provides a detailed description of the 

standards and procedures of the WWC, 

by reference. The Handbook is available 

to interested parties at https://

ies.ed.gov/ncee/wwc/Handbooks. The 

Version 5.0 Handbook includes a new 

Chapter I, Overview of the What Works 

Clearinghouse and Its Procedures and 

Standards and aligns the flow of content 

with the study review process. 

Additionally, it no longer allows for 

topic-specific customization of the 

standards, aligns its effectiveness ratings 

with the evidence definitions in 

§ 77.1(c), and describes other protocols 

for specific study designs. More details 

are available at https://ies.ed.gov/ncee/ 

WWC/Docs/referenceresources/Final_

HandbookSummary-v5-0-508.pdf. 

The WWC is an initiative of the 

Department’s National Center for 

Education Evaluation and Regional 

Assistance, within IES, which was 

established under the Education 

Sciences Reform Act of 2002 (Title I of 

Pub. L. 107–279). The WWC is an 

important part of the Department’s 

strategy to use rigorous and relevant 

research, evaluation, and statistics to 

inform decisions in the field of 

education. The WWC provides critical 

assessments of scientific evidence on 

the effectiveness of education programs, 

policies, products, and practices 

(referred to as ‘‘interventions’’) and a 

range of publications and tools 

summarizing this evidence. The WWC 

meets the need for credible, succinct 

information by reviewing research 

studies, assessing the quality of the 

research, summarizing the evidence of 

the effectiveness of interventions on 

student outcomes and other outcomes 

related to education, and disseminating 

its findings broadly. 

This handbook is available to the 

public at https://ies.ed.gov/ncee/wwc/ 

handbooks#procedures. 

Invitation to Comment: We invite you 

to submit comments regarding these 

proposed regulations. 

The following standards appear in the 

amendatory text of the document and 

have already been approved for the 

locations in which they appear: What 

Works Clearinghouse Standards 

Handbook, Versions 4.0 and 4.1; What 

Works Clearinghouse Procedures 

Handbook, Versions 4.0 and 4.1; and the 

What Works Clearinghouse Procedures 

and Standards Handbook, Versions 2.1 

and 3.0. 

To ensure that your comments have 

maximum effect in developing the final 

regulations, we urge you to clearly 

identify the specific section or sections 

of the proposed regulations that each of 

your comments addresses, and to 

provide relevant information and data 

whenever possible, even if there is no 

specific solicitation of data and other 

supporting materials in the request for 

comment. We also urge you to arrange 

your comments in the same order as the 

proposed regulations. 

We invite you to assist us in 

complying with the specific 

requirements of Executive Orders 

12866, 13563, and 14094 and their 

overall goal of reducing the regulatory 

burden that might result from the 

proposed regulations. Please let us 

know of any further ways that we may 

reduce potential costs or increase 

potential benefits, while preserving the 

effective and efficient administration of 

the Department’s programs and 

activities. We also welcome comments 

on any alternative approaches to the 

subjects addressed by the proposed 

regulations. 

During and after the comment period, 

you may inspect all public comments 

about the proposed regulations by 

accessing Regulations.gov. You may also 

inspect the comments in person. Please 

contact the person listed under FOR

FURTHER INFORMATION CONTACT to make 

arrangements to inspect the comments 

in person. 

Directed Questions: One of the 

Department’s goals in these proposed 

regulations, in addition to helping 

strengthen and streamline 

implementation and monitoring of 

Department grants, is to better support 

continuous improvement—encouraging 

grantees to use research, data, 

community and other engagement, and 

other feedback to periodically review 

and improve their project plans to best 

advance their programmatic objectives. 

We particularly welcome comments on 

how these proposed regulations could 

best advance this goal of continuous 

improvement. 

We also specifically seek input on the 

proposed changes to § 75.210, which 

outlines the Department’s general 

selection criteria. We carefully 

examined usage of these selection 

criteria over the years to inform the 

proposed changes. We also looked at 

how the selection criteria align with the 

components of a logic model, to allow 

peer reviewers to assess the logic model 

more directly, including how the pieces 

of the proposed project align with the 

intended outcomes. We seek public 

input on whether the proposed changes 

to § 75.210 would add clarity for 

applicants and peer reviewers and help 

ensure that the Department funds the 

highest-quality grant applications that 

are most likely to lead to successful 

projects. 

Assistance to Individuals with 

Disabilities in Reviewing the 

Rulemaking Record: On request, we will 

provide an appropriate accommodation 


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1984 Federal Register / Vol. 89, No. 8 / Thursday, January 11, 2024 / Proposed Rules 

or auxiliary aid to an individual with a 

disability who needs assistance to 

review the comments or other 

documents in the public rulemaking 

record for the proposed regulations. To 

schedule an appointment for this type of 

accommodation or auxiliary aid, please 

contact the person listed under FOR

FURTHER INFORMATION CONTACT. 

Background 

In this notice of proposed rulemaking 

(NPRM), we propose various updates to 

EDGAR and related regulatory 

provisions. The proposed changes range 

from technical updates (such as 

removing references to the Trust 

Territory of the Pacific Islands, which 

no longer exists) to streamlining 

regulations (such as consolidating those 

concerning State plans under Stateadministered formula grant programs) to 

adding new options for grant 

competition requirements (such as 

providing the Department the option to 

require a logic model in any competitive 

grant program or to require a grantee to 

conduct an independent evaluation). 

Except for minor or technical revisions, 

such as updates to citations, crossreferences, references to outdated 

programs, links, or general terminology, 

the proposed changes and reasons for 

them are explained in detail in the 

Significant Proposed Regulations 

section of this NPRM. The applicable 

authority for this regulatory package is 

section 410 of the General Education 

Provisions Act (GEPA) and section 414 

of the Department of Education 

Organization Act (20 U.S.C. 1221e–3 

and 3474, respectively), unless 

otherwise noted. 

Significant Proposed Regulations 

34 CFR Part 75—Direct Grant Programs 

Sections 75.1 and 75.200 Programs to 

Which Part 75 Applies and How 

Applications for New Grants and 

Cooperative Agreements Are Selected 

for Funding; Standards for Use of 

Cooperative Agreements 

Current Regulation: Section 75.1 

establishes that part 75 applies to direct 

grant programs of the Department. 

Section 75.200 further defines ‘‘direct 

grant programs’’ as either discretionary 

grant or formula grant programs. 

Proposed Regulation: Proposed § 75.1 

would combine § 75.1, and the note that 

follows that section, with § 75.200(a), 

(b)(1), and (c). Proposed § 75.1(c)(3) 

would specify what regulations in part 

75 apply to direct grant programs, 

which the proposed regulation clarifies 

are either a discretionary grant program 

or a formula grant program other than a 

State-administered formula grant 

program covered by part 76. We also 

propose in § 75.1 to change ‘‘authorizing 

statute’’ to ‘‘applicable statutes and 

regulations.’’ We also propose deleting 

current § 75.200(b)(3)(ii). 

Reasons: We propose these changes to 

consolidate all information relevant to 

which programs are covered by part 75 

into one regulatory provision. The 

changes are not substantive. We propose 

to change ‘‘authorizing statute’’ because 

we think the term is too narrow, as it 

does not include other applicable 

statutes, such as annual appropriations 

laws, that may override, modify, or 

supplement the ‘‘authorizing statute’’ 

without amending them. Although not 

reiterated throughout this preamble, we 

propose to make this conforming change 

in each applicable instance throughout 

the proposed regulations. Likewise, we 

propose to make this change in relevant 

instances where the term ‘‘program 

statute’’ is used. We propose deleting 

current § 75.200(b)(3)(ii) to remove 

redundancy with § 75.200(b)(3)(i). 

Section 75.4 Department Contracts 

Current Regulation: Section 75.4 

describes what regulations apply to 

Federal contracts and in what 

circumstances part 75 applies to a 

contract of the Department. 

Proposed Regulation: We propose to 

remove and reserve § 75.4. 

Reasons: Section 75.4 discusses 

contractual arrangements of the 

Department and when part 75 may 

apply to a Department contract. 

However, part 75 concerns the 

administration of the Department’s 

direct grant programs, not contracts 

entered into by the Department. 

Additionally, § 75.4 describes 

requirements found in Chapters 1 and 

34 of title 48 of the Code of Federal 

Regulations. These requirements apply 

to Department procurements, not 

Department grant programs or 

procurements undertaken by 

Department grantees. Therefore, to 

promote clarity and accessibility of the 

Department’s regulations, we propose to 

remove § 75.4 as unnecessary and 

redundant given the focus on direct 

grants in part 75. This provision 

concerns the regulations that govern 

Federal agency contracting, not grantee 

contracting. We do not propose to 

remove any provision relevant to a 

grantee’s contracting, and removing 

§ 75.4 would not modify any provision 

related to contractual arrangements of 

the Department. 

Section 75.60 Individuals Ineligible To 

Receive Assistance 

Current Regulation: Section 75.60 

prohibits certain individuals from 

receiving a fellowship, scholarship, or 

loan from the Department if they are in 

default, as that term is used in 34 CFR 

part 668. The current section lists 

specific Department programs that are 

fellowship, scholarship, or loan 

programs. 

Proposed Regulation: The proposed 

revisions to § 75.60 would delete the 

outdated list of programs and instead 

define Department programs that 

provide a fellowship, scholarship, or 

loan as being a program that offers a 

fellowship, scholarship, or loan 

‘‘administered by the Department.’’ 

Reasons: Current § 75.60 lists 

numerous programs that no longer exist. 

Rather than update the list with specific 

references to programs that may become 

outdated later, we believe that reliance 

on a description of those programs 

ensures that, over the long term, the text 

does not become outdated. The change 

is not intended to be substantive. 

Section 75.101 Information in the 

Application Notice That Helps an 

Applicant Apply 

Current Regulation: Section 75.101 

describes what information the 

Secretary may include in an application 

notice, including information about the 

program and the application forms. 

Current § 75.101(a)(1) includes a 

description of what information an 

application package contains. 

Proposed Regulation: We propose to 

revise § 75.101(a)(1) to refer more 

generally to the application package. 

Reasons: The information described 

in current § 75.101(a)(1)(i) and (ii) is 

now included in the application notice 

itself and not in the application 

package. Therefore, we believe that 

removing § 75.101(a)(1)(i) and (ii) would 

improve the clarity of the regulations. 

Sections 75.102 and 75.104 Deadline 

Date for Applications and Applicants 

Must Meet Procedural Rules 

Current Regulation: Section 75.102(b) 

provides that, if an applicant wants a 

new grant, the applicant must submit an 

application in accordance with the 

requirements in the application notice. 

Proposed Regulation: We propose to 

move paragraph (b) of § 75.102 to 

§ 75.104, where it would be added as a 

new paragraph (c). We also propose to 

revise the heading of § 75.104 to better 

reflect the topics covered by the 

regulation. 

Reasons: Moving this paragraph, 

which concerns the requirements in 

application notices, from § 75.102 to 

§ 75.104, would improve the clarity of 

the regulations because § 75.102 

pertains to deadlines for submitting 

applications and § 75.104 concerns 


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applicants’ compliance with additional 

application provisions. 

Section 75.105 Annual Priorities 

Current Regulation: Section 75.105 

describes the process by which the 

Secretary may use annual absolute and 

competitive preference priorities. 

Current § 75.105(b)(2) describes the 

exceptions to publishing the annual 

priorities for public comment. 

Paragraph (b)(2)(i) describes the 

Department’s use of invitational 

priorities and paragraph (b)(2)(iii) refers 

to the exceptions to the requirement for 

notice-and-comment rulemaking in 

section 553 of the Administrative 

Procedure Act (APA) (5 U.S.C. 553). 

Proposed Regulation: The proposed 

revisions would update the term 

‘‘annual priorities’’ in the section title to 

‘‘annual absolute, competitive 

preference, and invitational priorities,’’ 

and add existing exceptions to the 

public comment requirement in a new 

paragraph (b)(2)(vi). These include the 

exception authorized by section 

437(d)(1) of GEPA (20 U.S.C. 1232(d)(1)) 

for the first grant competition under a 

new or substantially revised program 

authority, as well as rulemaking 

exceptions under specific statutes. 

We also propose updates to 

paragraphs (b)(2)(i), (iii), and (b)(2)(iv) 

to properly describe the exceptions to 

the Department’s normal practice of 

publishing proposed priorities for notice 

and comment. 

Reasons: The Department has 

statutory authority to use and has used 

the GEPA exception for many years, and 

adding this exception would clarify that 

the regulation supplements the statutory 

exemption in GEPA section 437(d)(1). 

The exception to notice and comment 

rulemaking for the first grant 

competition under a new or 

substantially revised program authority 

is established by GEPA section 

437(d)(1); therefore, this change is not 

substantive. In addition, we propose to 

add references to section 681(d) of the 

Individuals with Disabilities Education 

Act (20 U.S.C. 1481(d)), and section 191 

of the Education Sciences Reform Act 

(20 U.S.C. 9581), both of which provide 

longstanding exemptions to the 

generally applicable requirement for the 

Department to conduct notice and 

comment rulemaking with respect to its 

discretionary grants. 

Section 75.109 Changes to 

Application; Number of Copies 

Current Regulation: Section 75.109(a) 

requires each applicant that submits a 

paper copy of an application to submit 

an original and two copies to the 

Department. 

Proposed Regulation: We propose to 

remove paragraph (a) of this section and 

revise the section heading accordingly. 

Reasons: We propose to remove this 

paragraph because it is no longer 

needed. The majority of applications are 

now submitted electronically. 

Section 75.110 Information Regarding 

Performance Measurement 

Current Regulation: Section 75.110 

sets out information regarding the 

Secretary’s authority to establish 

performance measurement requirements 

in an application notice. 

Proposed Regulation: The proposed 

revisions would clearly differentiate 

between program performance measures 

and project-specific performance 

measures as well as establish 

requirements, to which grantees must 

agree, related to the quality of data and 

use of performance measures for 

continuous improvement. 

Reasons: As a general matter, the 

Department’s programs have programlevel performance measures against 

which all grantees must report. Further, 

some programs also encourage or 

require grantees to establish projectspecific performance measures. Both 

sets of measures are important sources 

of information about program and 

grantee performance. The current 

regulations do not clearly differentiate 

between these two types of performance 

measures, and these proposed revisions 

would make that differentiation. 

Additionally, it is important to ensure 

that applicants propose to collect and 

report quality data and that grantees use 

their performance measures to inform 

continuous improvement of their 

projects. Therefore, we propose to 

require assurances for quality data as 

part of the applications, and that the 

data will be used to inform the 

continuous improvement plan for the 

project. 

Section 75.112 Include a Proposed 

Project Period and a Timeline 

Current Regulation: Section 75.112 

requires that applications include 

project periods and timelines of how the 

applicants plan to meet each project 

objective. 

Proposed Regulation: We propose to 

revise § 75.112 to allow the Secretary to 

include a requirement for a logic model 

in a particular competition, in addition 

to requiring a project period and a 

timeline. 

Reasons: This change would support 

the development of high-quality 

applications, given that logic models 

describe the need for a project, its 

inputs and outputs, and the intended 

outcomes. Logic models are helpful 

tools for applicants to use when 

establishing timelines and resource 

needs. They also are helpful to the 

Department and reviewers in 

understanding the applicant’s rationale 

for how its proposed project will 

achieve the project outcomes. 

Accordingly, adding the flexibility for 

programs to establish a requirement for 

logic models would support project 

planning as well as project 

implementation if the project is selected 

for funding. 

Section 75.127 Eligible Parties May 

Apply as a Group 

Current Regulation: Section 75.127(b) 

lists some of the terms used to identify 

a group of eligible parties that may 

apply as a group for a grant. The list 

includes: (1) a combination of 

institutions of higher education; (2) a 

consortium; (3) joint applicants; and (4) 

cooperative arrangements. 

Proposed Regulation: We propose 

revising § 75.127(b) to include the term 

‘‘partnerships.’’ We also propose adding 

a paragraph (c) stating that, in the case 

of a group application submitted in 

accordance with §§ 75.127–75.129, all 

parties in the group must be eligible 

applicants under the competition. This 

change would not alter the ability of 

applicants to form partnerships with 

entities that are not eligible to be 

recipients under a program. 

Reasons: We propose this change 

solely for clarity. In the case of an 

application submitted by a group of 

eligible applicants, a partnership is 

similar to a consortium, but in some 

programs the former term is used 

instead of the latter. Also, in the context 

of these regulations, the term ‘‘eligible 

applicant’’ is synonymous with ‘‘eligible 

party,’’ although § 75.127(a) and (b) refer 

to both as ‘‘eligible parties.’’ 

Sections 75.190–192 Development of 

Curricula or Instructional Materials 

Current Regulation: Sections 75.190, 

75.191, and 75.192 describe assurances 

and define reasonable consultation costs 

when grantees develop curricula or 

instructional materials. 

Proposed Regulation: We propose to 

remove §§ 75.190–75.192. 

Reasons: These regulations duplicate 

other assurances and regulations, 

including the cost principles in 2 CFR 

part 200, subpart E, that allow 

consultation costs that are reasonable 

and necessary. In addition, we think the 

open licensing requirements in 2 CFR 

3474.20 for Department competitive 

grants awarded in competitions 

announced after February 21, 2017, 

promote dissemination of materials 

developed with Department grant funds. 


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We propose removing them to avoid 

unnecessary duplication, which we 

believe may be confusing to grantees if 

we duplicate certain assurances and 

regulations but not others. 

Section 75.201 How the Selection 

Criteria Will Be Used 

Current Regulation: Section 75.201(b) 

provides that, if points are assigned to 

the selection criteria, the Secretary 

informs applicants in the application 

package or a notice published in the 

Federal Register. Paragraph (c) provides 

that, if no points or weights are assigned 

to the selection criteria and selected 

factors, the Secretary evaluates each 

criterion equally and, within each 

criterion, each factor equally. 

Proposed Regulation: In § 75.201(b), 

we propose adding the words ‘‘or 

factors’’ after the words ‘‘selection 

criteria.’’ In paragraph (c), we propose 

replacing the word ‘‘and’’ between the 

words ‘‘selection criteria’’ and ‘‘selected 

factors’’ with the word ‘‘or.’’ 

Reasons: The proposed revision to 

paragraph (b) would clarify that the 

Secretary may assign specific points, 

either to selection criteria or to the 

individual factors that make up an 

individual selection criterion, where 

appropriate to guide applicants and 

reviewers in more effectively preparing 

and reviewing applications. The 

revision to paragraph (c) would clarify 

the meaning of the provision and more 

accurately inform applicants and 

reviewers of how points are allocated 

among selection criteria and the 

individual factors making up each 

selection criterion when points are not 

assigned to the criteria or the selection 

factors. 

Section 75.210 General Selection 

Criteria 

Current Regulation: Section 75.210 

lists the selection criteria and factors 

that the Department uses in the peer 

review process to score applications for 

discretionary grants. 

Proposed Regulation: We propose 

changes to paragraphs (a) through (i) of 

§ 75.210. Throughout this section, we 

also propose to remove parenthetical 

cross-references to definitions in 

§ 77.1(c), to improve the consistency of 

how we refer to those definitions 

throughout our regulations. This global 

technical change would not affect the 

applicability of those definitions. 

Specifically, the proposed regulations 

would make the following updates: 

In paragraph (a), Need for project, as 

further described below, we propose 

clarifying in the criterion heading that it 

is need for ‘‘the’’ project. Regarding 

paragraph (a), Need for project, and 

paragraph (b), Significance, we propose 

a number of changes to provide greater 

clarity to applicants regarding the 

information they should provide in their 

applications to demonstrate the need or 

significance of the proposed project, 

including how the proposed project 

focuses on underserved populations, 

with the intent that the clarity for 

applicants will also provide better 

guidance for peer reviewers as they 

assess the extent to which applicants 

address these revised selection criteria 

factors. We also propose consolidation 

of factors where factors were similar in 

focus to streamline the menu of factors 

under the criterion. 

In paragraph (c), Quality of the project 

design, we propose revisions to the 

factors that more explicitly reference 

and connect to a logic model, 

emphasizing the importance of 

considering the components of a logic 

model in relation to the design of the 

proposed project. We are also proposing 

to add three new factors regarding how 

the proposed project is informed by 

similar projects implemented by the 

applicant, the extent to which an 

applicant will allocate a significant 

portion of requested funding to the 

evidence-based components, and the 

commitment of key decision-makers at 

implementation sites for the proposed 

project. 

In paragraph (d), Quality of project 

services, we propose clarifying in the 

criterion heading that it is the quality of 

‘‘the’’ project services. We also propose 

to explicitly tie this factor to section 427 

of GEPA (20 U.S.C. 1228(a)), and the 

related form Equity For Students, 

Teachers, And Other Program 

Beneficiaries (OMB Control No. 1894– 

0005), to connect an applicant’s 

response to this form with the peer 

review of the application. Like Quality 

of the project design, proposed changes 

to Quality of project services reflect 

input from entities involved in the 

project, more direct connection to and 

engagement with the populations served 

by the proposed project, and the 

impacts of the services on those 

populations. We also propose a new 

factor related to early childhood and 

family outcomes, given the importance 

of serving young children and families 

effectively. 

In paragraph (e), Quality of project 

personnel, we propose clarifying in the 

criterion heading that it is quality of 

‘‘the’’ project personnel. We also 

propose revisions that would address 

how the personnel of the proposed 

project are representative of the 

population to be served by the project, 

including a new factor that would speak 

to the project team reflecting the 

demographics of the community to be 

served. Revisions also would address 

the relevance of experience of the 

project personnel with similar projects. 

Lastly, we propose a new factor that 

seeks to ensure that the project team is 

familiar with the assets, needs, and 

other contextual considerations of the 

proposed implementation sites. 

In paragraph (f), Adequacy of 

resources, we propose revisions that 

would combine the adequacy of the 

resources and how those resources will 

support the proposed project. We also 

propose revisions that clarify 

commitments from partners, long-term 

sustainability and institutionalization of 

the project, and a new proposed factor 

on the reasonableness of the costs 

related to potential future adoption of 

the project. 

In paragraph (g), Quality of the 

management plan, we propose revisions 

that focus on the feasibility of the 

project, how data will be used to inform 

continuous improvement, and how the 

management plan includes the 

perspectives of underserved populations 

for the proposed project. 

In paragraph (h), Quality of the 

project evaluation, we propose revising 

the criterion heading to ‘‘Quality of the 

project evaluation and evidencebuilding.’’ In addition to the changes 

regarding the term ‘‘evidence-building,’’ 

which we propose to define in § 77.1(c), 

we propose revisions that would focus 

on the relevance of the evaluation, a 

focus of the evaluation on underserved 

populations, continuous improvement 

efforts and data to inform continuous 

improvement, revising the current factor 

on ‘‘promising evidence’’ so that it 

refers to the types of studies instead, 

differentiation of impacts for project 

components, and the experiences and 

independence of the evaluator. Lastly, 

we propose new factors focused on 

fidelity of implementation and 

dissemination of evidence-building 

learnings from the project. 

In paragraph (i), Strategy to scale, we 

propose revisions that would clarify 

how the scaling work is informed by, 

and builds on, the project, seeks to serve 

underserved populations, and addresses 

previous barriers to impact. The 

revisions would allow for scaling at 

either the regional level or the national 

level and could include dissemination 

as well as adaptation and replication. 

We also propose new factors that look 

at how scaling efforts will target new 

populations or settings, the efficiencies 

in the project that will be incorporated 

into the scaling efforts, and the revenue 

stream to support scaling. 

Reasons: The proposed revisions 

would provide clarity, ensure technical 


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and grammatical consistency, and make 

certain substantive changes, further 

described below. The menu of selection 

criteria and factors has expanded over 

the years through the various updates to 

EDGAR, and we closely reviewed it to 

determine what changes are needed. We 

also looked at how the existing factors 

were used in the various Department 

discretionary grant competitions to 

inform which factors are used 

frequently and which factors have rarely 

or never been used. For those rarely or 

never used, we examined whether there 

were other similar factors that might be 

used in their place, or if the language of 

the factor might be confusing. In some 

instances, we propose consolidating 

factors for these reasons, and, in some 

instances, we propose deleting the 

factors because they have rarely or never 

been used. We also sought to examine 

how the selection criteria can advance 

the Department’s objectives of 

increasing diversity of applicants, 

ensuring equity in project services, and 

advancing usage of evidence. Clarity in 

the selection factors aids grant 

applicants’ understanding and the 

Department’s peer review and selection 

of grantees. The proposed changes to the 

selection criteria and factors under each 

criterion are based on lessons we have 

learned from using the existing selection 

criteria, ways to streamline the factors, 

and improvements to clarity. The 

proposed revisions seek to broaden the 

applicability of the factors, focus on 

data to inform project design and 

continuous improvement, demonstrate 

how the project and its personnel reflect 

the population to be served, and 

indicate how lessons learned from the 

project are incorporated into the project 

and plans for continued implementation 

and improvement after the grant period. 

In paragraph (a), Need for project, we 

propose to revise the factors to further 

distinguish need, including allowing the 

Department to request comparison data 

that help an applicant demonstrate their 

need for the project and having 

applicants identify gaps that the 

proposed project will fill. Furthermore, 

we propose to focus these factors to 

further target grant funds to individuals 

and populations that are underserved 

and lack access to services. 

Like the factors under Need for 

project, the proposed revisions under 

paragraph (b), Significance, are meant to 

allow applicants to quantify the 

significance of the project, including 

significance beyond the individual grant 

project and relevance to broader 

educational challenges. The proposed 

changes are meant to provide 

information on contributions to the 

field, capacity for the project to be 

adopted by others in the field, and a 

new proposed factor (xvii) that would 

focus on innovative approaches to 

existing evidence-based project 

components that support efforts under 

some Department programs to invest 

and then scale innovative projects. 

Additional revised factors would 

require using knowledge from project 

implementation to identify effective 

strategies to address educational 

challenges, as we think it is important 

for applicants to plan for not just 

implementing a project but developing 

ways to share knowledge from the 

implementation beyond the grant 

project. Recognizing that the 

Department is not the only agency or 

organization that funds and supports 

educational efforts, we think it is 

important for applicants to prepare for 

sharing their contributions to the field, 

and that the field is broader than just 

the Department. In addition, proposed 

factor (iv) would more explicitly 

reference rehabilitative services, which 

would be important for grant programs 

under the Rehabilitation Services 

Administration of the Department’s 

Office of Special Education and 

Rehabilitative Services. 

In paragraph (c), Quality of the project 

design, we intend to emphasize the 

importance of ensuring that the project 

design reflects engagement of the 

community to be served and other 

relevant entities, includes a focus on 

continuous improvement, and relies on 

relevant high-quality research that 

informs the proposed project. These 

revisions are intended to strengthen a 

proposed project design. We also 

propose to add new factors: how the 

proposed project is informed by similar 

projects implemented by the applicant, 

the extent to which an applicant will 

allocate a significant portion of 

requested funding to the evidence-based 

project components, the commitment of 

key decision makers at implementation 

sites for the proposed project, and the 

engagement of community members and 

partners in the design of the proposed 

project. The intent of these additions is 

to focus on project designs that consider 

previous implementations, the evidence 

base, and the needs of the community 

by engaging them. Additional revisions 

propose the development and use of a 

logic model because we think that logic 

models establish project designs that 

connect the intended outcomes with the 

inputs and activities to support those 

outcomes. Current factors reference only 

a conceptual framework or the 

‘‘demonstrates a rationale’’ or 

‘‘promising evidence’’ evidence levels 

but do not specifically discuss a logic 

model, which is defined in part 77. 

Lastly, we propose a factor about 

commitments at implementation sites to 

address issues we have seen in grant 

projects for which implementation sites 

were named in an application, but their 

support was unclear and affected 

implementation during the project 

period. 

In paragraph (d), Quality of project 

services, we propose to explicitly tie 

this factor to section 427 of GEPA (20 

U.S.C. 1228(a)), and the related form 

Equity For Students, Teachers, And 

Other Program Beneficiaries (OMB 

Control No. 1894–0005), for equitable 

access to, and participation in, the 

proposed project. The intent of this 

alignment is to connect an applicant’s 

responses related to equity 

considerations on that form to the 

project services proposed under the 

project and aligns with the form’s 

instructions, which include a broad list 

of potential barriers that may impede 

equitable access and participation. We 

propose these revisions under Quality of 

the project service and not under 

Quality of project personnel, as we 

think the responses on the form are 

more relevant to the project services and 

the activities being carried out under the 

grant. Other proposed revisions to 

factors under Quality of project services 

would align with proposed changes to 

other selection criteria, focusing on 

community engagement in project 

services, ensuring that project services 

are focused on underserved 

populations, and the relevance of the 

services and the data being collected 

and used to inform the project services. 

We propose a new factor focused on the 

outcomes of early childhood and 

families to align with Department 

programs that focus on these 

populations, because these populations 

are currently not included in this 

criterion. 

In paragraph (e), Quality of project 

personnel, we propose revisions to 

parallel those under Quality of project 

services that would align the listed 

examples of groups that have 

experienced barriers between the two 

criteria. We also propose factors that 

align the qualifications of the personnel 

with similar projects, factors that focus 

project personnel on being 

representative of the target population 

for project services, and a factor to have 

personnel who are familiar with the 

needs of the implementation sites for 

the proposed project. The proposed 

revisions and new factors are intended 

to help ensure that personnel are 

positioned to meet the needs of the 

underserved populations to be served 

and more closely reflect those 


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populations, including a focus on the 

training and experiences of the 

personnel that align with the work to be 

carried out under the proposed project. 

Regarding paragraph (f) Adequacy of 

resources, the proposed changes are 

intended to clarify the connection 

between the budget for the proposed 

project and how those costs are 

reasonable and significant, including a 

new factor that looks at the 

reasonableness of others being able to 

adopt and implement the project, 

because we are interested in the 

anticipated costs of broader 

implementation. We also propose 

revisions to the factor that requires 

applicants to address matching funds 

and partner commitments, which is 

significant given the number of program 

statutes that have matching 

requirements. 

In paragraph (g), Quality of the 

management plan, we propose revisions 

to the existing factors to focus on the 

applicant’s plan to meet goals and 

objectives, timelines, and budgets. 

Separately, we propose a revised factor 

to involve the use of community and 

partner input in the management plan, 

to inform continuous improvement 

efforts related to project 

implementation. Lastly, the proposed 

revisions to criterion (v) are meant to 

ensure meaningful engagement from the 

underserved populations to be served by 

the project to ensure the management 

plan reflects their needs. 

In paragraph (h), Quality of the 

project evaluation, the proposed 

changes are intended to recognize that 

rigorous evaluation is not feasible for all 

projects; however, there are efforts 

relating to project goals, objectives, and 

performance measurement that can be 

used to improve the project, reach 

intended outcomes, and focus on 

evidence-building, which would be 

supported by the proposed definition in 

§ 77.1(c). We also propose revising the 

current factor on ‘‘promising evidence’’ 

so that it refers to the types of studies 

instead, which we think provides 

greater clarity on what evaluation 

designs are necessary to meet the 

requirements of the factor. 

In paragraph (i), Strategy to scale, the 

proposed changes focus on underserved 

populations. We propose two factors 

that would establish the level of the 

efforts to scale, having a separate factor 

for scaling to the regional level because 

not all projects can scale to the national 

level. A proposed new factor focuses 

scaling on new populations or settings, 

which is meant to get at the broader 

potential scaling of the proposed 

project. Multiple factors are meant to 

focus on how an applicant will address 

issues to scaling, including identifying 

and proposing strategies to address 

barriers to scaling, adaptions and 

replications to allow for scaling, and the 

addition of two new factors focused on 

the financial aspects of scaling, 

including efficiencies in scaling and 

revenue sources. All these revisions are 

meant to encourage applicants to more 

thoughtfully consider all of the aspects 

related to successful scaling of a project, 

to ensure ongoing support and growth 

for a project after Federal funding ends. 

Section 75.216 Applications Not 

Evaluated for Funding 

Current Regulation: Section 75.216 

provides that the Secretary does not 

evaluate an application if: (a) The 

applicant is not eligible; (b) the 

applicant does not comply with all 

procedural rules that govern the 

submission of the application; (c) the 

application does not contain the 

information required under the 

program; or (d) the proposed project 

cannot be funded under the applicable 

statute and regulation or implementing 

regulations for the program. 

Proposed Regulation: We propose to 

revise § 75.216 by removing paragraphs 

(a) and (d) and revising the section 

heading to read: Applications that the 

Secretary may choose not to evaluate for 

funding. 

Reasons: We propose to revise this 

provision because the Department is 

bound by law to follow applicable 

statutes and regulations, and this change 

to § 75.216 would not change the rules 

that govern the eligible entities and 

types of projects that can be funded 

under a particular grant competition. To 

meet the deadlines for timely review of 

applications, the Department will often 

forward applications for evaluation to 

peer reviewers before making final 

determinations on compliance with all 

the requirements in § 75.216, which are 

often complex and time consuming. The 

proposed changes to § 75.216 align with 

current Department practice, allow the 

peer review process to proceed in a 

timely fashion, and allow final 

eligibility determinations to be made 

prior to an award being made to an 

applicant. For this reason, paragraphs 

(a) and (d) are unnecessary. In addition, 

the revisions to the title would clarify 

the Department’s determinations not to 

evaluate an application for the reasons 

set forth in this regulation and codifies 

Department practice. 

Section 75.217 How the Secretary 

Selects Applications for New Grants 

Current Regulation: Paragraph (c) of 

§ 75.217 provides that the Secretary 

prepares a rank order of the applications 

based solely on the evaluation of their 

quality according to the selection 

criteria. 

Proposed Regulation: We propose to 

revise paragraph (c) of § 75.217 to clarify 

that we may prepare multiple rank 

orders where we have a menu of 

absolute priorities that applicants must 

meet, as well as clarify that the rank 

order will also reflect any competitive 

preference points. 

Reasons: The proposed change would 

provide a full description of the 

information relied on by the Secretary 

in preparing a rank order of applications 

under § 75.217 and codifies our current 

practice in § 75.217. 

Section 75.219 Exceptions to the 

Procedures Under § 75.217 

Current Regulation: Section 75.219(b) 

excepts an application from the 

procedures described under § 75.217 if 

the application was rated highly enough 

to be funded but was not funded 

because it was mishandled. 

Proposed Regulation: We propose to 

revise § 75.219(b)(2) and (3) to provide 

for situations in which an application 

was not selected for funding because the 

application was mishandled or 

improperly processed by the 

Department and an application has been 

rated highly enough to qualify for 

selection under § 75.217. 

Reasons: We propose this change to 

improve the clarity of this provision. 

There have been instances in which the 

mishandling or improper processing of 

applications by the Department resulted 

in either an applicant not being rated or 

having its rating not properly recorded 

due to a clerical or other error. As a 

result, we propose changes to clarify 

that § 75.219(b) applies if, in the 

absence of the mishandling or improper 

processing, an application either had 

been rated highly enough to be funded 

or would have been rated highly enough 

to be funded had it been reviewed. 

When the Department discovers an 

application that was not reviewed due 

to mishandling or improper processing, 

it has the application reviewed and, if 

the score is high enough, makes an 

award using funds that are available 

when the review is conducted. This 

proposed change clarifies the scope of 

this provision and the procedures the 

Department follows in practice. 

Section 75.220 Procedures the 

Department Uses Under § 75.219(a) 

Current Regulation: Section 

75.220(b)(2) references an employee of 

the Office of the Chief Financial Officer 

(OCFO) with responsibility for grants 

policy to serve on a board to review an 

application under the special 


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circumstances of § 75.219(a) (The 

objectives of the project cannot be 

achieved unless the Secretary makes the 

grant before the date grants can be made 

under the procedures in § 75.217.) 

Proposed Regulation: We propose 

revising paragraph (b)(2) to refer instead 

to the Office of Finance and Operations 

(OFO). 

Reasons: In the reorganization at the 

Department that went into effect in 

January 2019, the OCFO functions were 

incorporated into the new OFO, and this 

section would be updated to reference 

the correct office. 

Section 75.221 Procedures the 

Department Uses Under § 75.219(b) 

Current Regulation: Section 75.221 

provides that, if the special 

circumstances of § 75.219(b) appear to 

exist for an application, the Secretary 

may select the application for funding 

if: the Secretary has documentary 

evidence that the special circumstances 

of § 75.219(b) exist; and (b) the Secretary 

has a statement that explains the 

circumstances of the mishandling. 

Proposed Regulation: We propose to 

revise § 75.221 to improve its clarity and 

eliminate the requirement that the 

Secretary have a statement that explains 

the circumstances. 

Reasons: We propose to revise the 

provision to improve its clarity and 

eliminate unnecessary language. The 

proposed changes would remove the 

requirement for an explanation of the 

mishandling separate from 

documentation of the circumstances of 

the mishandling. The Department does 

not believe that further explanation of 

the reasons the application was 

mishandled is necessary if the Secretary 

has documentation of the 

circumstances, already required under 

§ 75.219(b). 

Section 75.522 Procedures the 

Department Uses Under § 75.219(c) 

Current Regulation: Section 75.222 

describes the procedures for considering 

an unsolicited application, including 

the note accompanying § 75.222 

references the Application Control 

Center, which no longer exists. 

Proposed Regulation: Proposed 

§ 75.222 would update the mailing 

procedures for unsolicited applications 

to align with the mailing procedures 

discussed in the Common Instructions 

for Applicants to Department of 

Education Discretionary Grant 

Programs, published in the Federal 

Register on December 7, 2022 (87 FR 

75045). 

Section 75.225 What procedures does 

the secretary use if the secretary decides 

to give special consideration to novice 

applications? 

Current Regulation: Section 75.225 

describes the circumstances in which 

the Secretary may give an absolute or 

competitive preference to an applicant 

that meets the definition of ‘‘novice 

applicant.’’ To be a ‘‘novice applicant’’ 

under current § 75.225, an applicant 

must have, in part: (1) never received a 

grant or subgrant under the program 

from which it seeks funds; (2) never 

been a member of a group application; 

and (3) not had an active discretionary 

grant from the Federal government in 

the last five years. 

Proposed Regulation: Proposed 

§ 75.225 would replace the term ‘‘novice 

applicant’’ with the term ‘‘new potential 

grantee’’ and provide a definition of that 

new term. The proposed definition 

includes five options from which the 

Department could choose to apply one 

or more of the conditions to a specific 

competition. The options of conditions 

for defining a new potential grantee 

would include: (1) an applicant that has 

never received a grant or cooperative 

agreement, including membership in a 

group application submitted in 

accordance with §§ 75.127–75.129 that 

received a grant, under the program 

from which it seeks funds; (2) an 

applicant that does not, as of the 

deadline date for submission of 

applications, have an active grant or 

cooperative agreement, including 

membership in a group application 

submitted in accordance with 

§§ 75.127–75.129 that received a grant, 

under the program from which it seeks 

funds; (3) an applicant that has not had 

an active discretionary grant or 

cooperative agreement, including 

membership in a group application 

submitted in accordance with 

§§ 75.127–75.129 that received a grant, 

under the program from which it seeks 

funds in a specified number of years 

before the deadline date for submission 

of applications under the program; (4) 

an applicant that has not had an active 

discretionary grant or cooperative 

agreement from the Department, 

including membership in a group 

application submitted in accordance 

with §§ 75.127–75.129 that received a 

grant, in a specified number of years 

before the deadline date for submission 

of applications under the program; or (5) 

an applicant that has not had an active 

contract from the Department in a 

specified number of years before the 

deadline date for submission of 

applications under the program from 

which it seeks funds. Based on program 

needs, a discretionary grant program 

could choose to define ‘‘new potential 

grantee’’ using one or any combination 

of the five options described in 

proposed § 75.225(a). If used, the 

Secretary would specify the number of 

years for definitions (3), (4), and (5) in 

the NIA by selecting from among the 

identified options, as described in 

proposed § 75.225(b). In addition, the 

proposed regulations would create a 

corresponding inverse priority for 

applicants that are not ‘‘new potential 

grantees’’ to be used when the Secretary 

creates an absolute priority for ‘‘new 

potential grantees’’ and plans to create 

multiple funding slates for applicants 

that are ‘‘new potential grantees’’ and 

those that are not. The intent is for this 

inverse option to be used when the 

‘‘new potential grantee’’ priority is used 

as an absolute priority, and there is a 

need to be able to create another 

funding slate for those applicants that 

do not meet the ‘‘new potential grantee’’ 

priority. 

Reasons: Since the enactment of this 

regulation in 2002, we have discovered 

that the definition of ‘‘novice applicant’’ 

is often complex and overly restrictive 

in practice. For instance, many of the 

Department’s grant programs have very 

few, if any, eligible entities (such as 

institutions of higher education) that 

have not had other discretionary grants 

from the Federal government in the last 

five years. Despite § 75.225 being 

applicable to all the Department’s 

discretionary grant programs, many 

programs have needed to create 

program-specific definitions of ‘‘novice 

applicant’’ that are tailored to their 

individual contexts because the vast 

majority of prospective applicants for 

our programs would not meet the 

current definition of ‘‘novice applicant’’ 

in § 75.225. These proposed revisions 

would provide the Department’s 

programs with increased options to 

define ‘‘new potential grantee.’’ We 

think that these proposed revisions 

would allow this priority to be usable in 

more discretionary grant programs and 

more effectively promote the 

Department’s interest in awarding grants 

to a more diverse and inclusive variety 

of applicants. Furthermore, these 

revisions align with the successful 

implementation of the ‘‘Applications 

from New Potential Grantees’’ and 

‘‘Applications from Grantees that are 

Not New Potential Grantees’’ priorities 

from the Administrative Priorities for 

Discretionary Grant Programs published 

in the Federal Register on March 9, 

2020 (85 FR 13640) (Administrative 

Priorities), which have worked well in 

allowing the Department to prioritize 


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new potential grantees. We propose to 

add those priorities to the regulations 

for clarity and consistency. 

In the Administrative Priorities and 

proposed here, option (1) would apply 

in programs where the Department 

would intend to focus on applicants that 

have never received a grant under the 

program; option (2) would apply in 

grant competitions for which the 

Department would intend to prioritize 

‘‘new potential grantees’’ without an 

active grant under the program; option 

(3) would apply in the event that a 

program may have multiple cohorts of 

grantees, and the Department would 

intend to define ‘‘new potential 

grantees’’ as those that have not had a 

grant under the program for the 

specified number of years; option (4) 

would apply when the Department 

would intend to be inclusive of other 

Department grant programs when 

determining ‘‘new potential grantees;’’ 

and option (5) would apply in cases 

when there are grant programs where an 

applicant may not have a Department 

grant but may have Department 

contracts and is familiar with the work 

of the Department already. The intent of 

these options is to take into 

consideration program specific contexts, 

such as the different characteristics of 

programs, including different types of 

applicants and different frequencies in 

which grant competitions are run. 

Section 75.226 What procedures does 

the Secretary use if the Secretary 

decides to give special consideration to 

applications supported by strong, 

moderate, or promising evidence? 

Current Regulation: Section 75.226 

describes the Secretary’s authority to 

give special consideration to 

applications supported by strong, 

moderate, or promising evidence. 

Proposed Regulation: The proposed 

revision would also permit the Secretary 

to give special consideration to an 

application that ‘‘demonstrates a 

rationale’’ as defined in § 77.1(c) 

without disallowing evidence that may 

meet more than one of the four levels 

described in that section. We also 

propose removing cross-references to 

the definitions of ‘‘strong evidence,’’ 

‘‘moderate evidence,’’ and ‘‘promising 

evidence’’ in § 77.1(c), because we do 

not include such cross-references 

elsewhere in part 75, and they are not 

necessary. 

Reasons: While we continue to be 

very interested in grant projects that are 

supported by rigorous evidence, we 

recognize that the research base 

supporting many of our discretionary 

grant programs is still emerging. In 

addition, we think it is important to 

provide incentives for innovative 

approaches to systemic problems in 

education wherever possible. Adding 

the ‘‘demonstrates a rationale’’ level of 

evidence to § 75.226 would allow the 

Department to give priority to 

applications that meet this standard, 

thereby requiring or encouraging 

applicants to incorporate research into 

their project planning, where possible, 

while still supporting the identification 

of innovative solutions. This addition is 

also consistent with the ‘‘Applications 

that Demonstrate a Rationale’’ priority 

in the Administrative Priorities, which 

has been beneficial to achieving these 

objectives in discretionary grant 

competitions. 

Section 75.227 [Reserved] 

Current Regulation: Section 75.227 is 

currently reserved. 

Proposed Regulation: We propose to 

add a new § 75.227 that would allow the 

Secretary to establish a separate 

competition for, or provide competitive 

preference to, applicants that propose to 

serve rural locations. Specifically, the 

Secretary could decide to give such 

special consideration to applicants that 

can demonstrate one or more of the 

following: (1) the area the applicant 

proposes to serve is a rural LEA, (2) the 

area the applicant proposes to serve is 

a rural community, (3) the area the 

applicant proposes to serve is a rural 

school, or (4) the applicant is a rural 

institution of higher education. We 

propose to utilize rural programs 

authorized under ESEA as well as the 

locale codes from the National Center 

for Education Statistics School District 

search tool, given that there are different 

Federal definitions for ‘‘rural.’’ The 

proposed regulation also specifies that, 

if using an absolute priority related to 

rural applicants, the Secretary may also 

include an absolute priority for 

applicants that do not meet that priority 

in order to offer separate competitions, 

resulting in separate rank orders, for 

each competition. 

Reasons: Rural communities face 

unique challenges due to their being 

remote, and they also have unique 

opportunities. These factors are 

reflected in many program statutes’ 

priorities accorded to applicants that 

serve rural communities in many 

Department programs, but we believe 

that it is necessary that every 

discretionary grant program have the 

option to give priority to applicants that 

will serve rural communities. This 

section would enable the Department to 

specifically encourage applications that 

will provide services in rural 

communities. This addition would also 

be consistent with ‘‘Rural Applicants’’ 

and ‘‘Non-Rural Applicants’’ priorities 

in the Administrative Priorities, which 

have worked well to achieve these goals 

in discretionary grant competitions. 

Section 75.234 The Conditions of the 

Grant 

Current Regulation: Section 75.234 

refers to ‘‘special conditions’’ that the 

Secretary determines prior to making a 

grant. 

Proposed Regulation: Proposed 

§ 75.234 replaces the term ‘‘special’’ 

with the term ‘‘specific.’’ 

Reasons: ‘‘Specific’’ is the term the 

Department now uses, consistent with 2 

CFR 200.208 to refer to conditions 

imposed on a grant award. The change 

is not substantive. 

Section 75.250 Maximum Funding 

Period 

Current Regulation: Section 75.250(a) 

provides that the Secretary may approve 

a project period of up to 60 months to 

perform the substantive work of the 

grant. 

Proposed Regulation: We propose to 

revise the heading for § 75.250 to change 

‘‘funding’’ to ‘‘project’’ and propose to 

revise § 75.250(a) to clarify that the 

Secretary may approve project periods 

of up to 60 months unless statutory 

authority provides otherwise. We also 

propose removing § 75.250(b) because 

we propose a new § 75.254 to separately 

address data collection periods. 

Reasons: We propose the change to 

the heading to align with the use of the 

term ‘‘project period’’ in § 75.250(a). We 

propose the change to § 75.250(a) to 

clarify that EDGAR does not supersede 

the applicable statutes and regulations 

that apply to a given program. We also 

propose to delete § 75.250(b) as we 

propose a new § 75.254 to allow for data 

collection periods separate from the 

extension of a project period. 

Section 75.253 Continuation of a 

Multiyear Project After the First Budget 

Period 

Current Regulation: Section 75.253 

describes the process and requirements 

for making continuation awards. 

Proposed Regulation: The proposed 

revisions would clarify those 

procedures and requirements, including 

addition of verification of the quality 

data submitted, and explain that, if the 

Department decides not to make a 

continuation award, a grantee will be 

given an opportunity to object under 2 

CFR 200.341 through a request for 

reconsideration. They also would 

explain existing Department practices 

that a determination by the Secretary to 

not make a continuation award, or to 

reduce the amount of a continuation 


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award, to a grantee does not constitute 

a withholding under section 455 of 

GEPA (20 U.S.C. 1234d). 

Reasons: These proposed changes 

would reflect existing Department 

practices and provide a clearer 

description of the relevant requirements 

and procedural rights of grantees in the 

continuation awards process. In 

addition, these revisions would explain 

that a determination by the Department 

not to make a continuation award, or to 

reduce the amount of a continuation 

award, to a grantee does not constitute 

a withholding under section 455 of 

GEPA. That provision of GEPA deals 

with circumstances in which funds have 

already been obligated, such as a 

discretionary grantee that has already 

received a continuation award or, as is 

the case with a formula grant program, 

a grantee that is entitled to receive funds 

or has already received funds if it meets 

certain eligibility requirements. Neither 

of these conditions is present if the 

Secretary decides to not make, or to 

reduce, a continuation award. 

Section 75.254 [Reserved] 

Current Regulation: Section 75.254 is 

currently reserved. 

Proposed Regulation: We propose to 

add a new § 75.254 that would allow the 

Secretary to award a data collection 

period of up to 72 months after the end 

of the project period and provide funds 

for the data collection period. The 

proposed regulation would also set forth 

how the Secretary would inform 

applicants of this data collection period. 

It would further state that the Secretary 

may require applicants to include a 

budget and description for the data 

collection period in their applications if 

the data collection period is announced 

through the NIA. 

Reasons: Currently, § 75.250 allows 

for a data collection period for a grant 

for a period of up to 72 months after the 

end of the project period. However, 

§ 75.250 is not an option for those 

Department programs for which there is 

a maximum statutory performance 

period. Flexibility in how and for which 

programs the Department can allow data 

collection awards would give us 

opportunities to learn more about the 

impacts of our grants. Statutory 

limitations on project periods inhibit 

this longer-term data collection that 

could inform impacts beyond grant 

project periods. Furthermore, the 

Department operationalizes the data 

collection period under § 75.250 as a 

separate grant award and establishing a 

separate section in EDGAR gives the 

Department greater flexibility in how to 

use data collection awards. This section 

would also align with a similar priority 

from the Administrative Priorities, 

building on lessons learned from that 

priority, including notifying applicants 

in the NIA to propose a timeline that 

includes a data collection period. 

Section 75.261 Extension of a Project 

Period 

Current Regulation: Section 75.261 

describes when grant project periods 

may be extended and under what 

conditions a grantee may receive a 

project period extension. 

Proposed Regulation: Proposed 

§ 75.261 would clarify that there are two 

types of project period extensions: (1) a 

one-time extension of up to 12 months 

without prior approval if the 

requirements in 2 CFR 200.308(e)(2) are 

met and there are no applicable statutes, 

regulations, or grant conditions 

prohibiting such an extension; and (2) 

an additional extension beyond the 12 

months with prior approval of the 

Secretary, if certain other conditions are 

met. The proposed revision also would 

remove references to specific technical 

assistance centers in current paragraph 

(b) that no longer exist, correct citations, 

and align language to be consistent with 

the Uniform Administrative 

Requirements, Cost Principles, and 

Audit Requirements (the Uniform 

Guidance) for Federal Awards in 2 CFR 

part 200, as adopted and amended as 

regulations of the Department in 2 CFR 

part 3474. 

Reasons: The regulation, as currently 

written, includes numerous revisions 

made over the years and is now in need 

of streamlining, and contains outdated 

references and citation errors. These 

proposed changes would promote 

greater clarity and accessibility for the 

public regarding project period 

extensions. The proposed changes are 

not substantive. 

Section 75.263 Pre-Award Costs; 

Waiver of Approval 

Current Regulation: Section 75.263 

describes when pre-award costs may be 

incurred. 

Proposed Regulation: Proposed 

§ 75.263 would remove the clause 

‘‘notwithstanding any requirement in 2 

CFR part 200.’’ 

Reasons: The language we propose to 

remove is not necessary to establish that 

the requirements of 2 CFR part 200 

apply; removing it would add clarity to 

the regulation. The proposed change is 

not substantive. 

Section 75.519 Dual Compensation of 

Staff 

Current Regulation: Section 75.519 

prohibits paying for project staff who 

are compensated from another source of 

funds. 

Proposed Regulation: Proposed 

§ 75.519 would add a reference to the 

cost principles described in 2 CFR part 

200, subpart E—Cost Principles. 

Reasons: The reference we propose to 

add provides the source for the 

prohibition discussed in § 75.519. The 

change is not substantive. 

Sections 75.560–75.564 Indirect Cost 

Rates 

Current Regulations: Sections 75.560– 

75.564 describe the application of 

indirect costs under discretionary grant 

programs, including who approves 

indirect costs rates and how they are 

applied. 

Proposed Regulations: The proposed 

revisions would align these sections of 

EDGAR with the Uniform Guidance in 

2 CFR part 200, include cost allocation 

plans along with indirect costs rates, 

and provide clarity on the application of 

indirect cost rates. 

Reasons: The Uniform Guidance sets 

out requirements that apply to Federal 

grants and was adopted by the 

Department in 2 CFR part 3474. The 

Uniform Guidance, in conjunction with 

EDGAR, governs Department grants and 

therefore these provisions should be 

closely aligned with one another. These 

sections of EDGAR do not reflect recent 

updates to the Uniform Guidance, 

including the addition of the de 

minimis rate, referencing cost allocation 

plans as performing a role equivalent to 

indirect costs rate, and clarifications on 

restricted rates, and this alignment is 

necessary to ensure that there is no 

confusion. Moreover, the proposed 

changes are intended to add clarity 

regarding how indirect cost rates are 

applied, as well as the indirect cost rate 

options an entity has. 

Section 75.590 Evaluation by the 

Grantee 

Current Regulation: Section 75.590 

describes what grantees must 

demonstrate or provide to the 

Department regarding performance 

reporting and the evaluation of their 

projects. 

Proposed Regulation: The proposed 

revision would add a new paragraph (c) 

that would permit the Department to 

include a requirement for an 

independent evaluation in any grant 

competition, for the results of that 

evaluation to be made public, including 

the option to make the data available to 

third-party researchers, and for the 

results of that evaluation or a grantee 

final report to be submitted to ERIC, 

which is administered by IES. 


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Reasons: We want to have more tools 

available to build, use, and disseminate 

rigorous evidence more effectively. 

Requiring grantees to conduct 

independent evaluations, where 

appropriate, would help increase the 

credibility of their project evaluations 

because the entity conducting the 

evaluation would have no vested 

interest in the outcome of the 

evaluation. An independent evaluation 

to assess the implementation or impact 

of a project or project component has 

the potential to build the evidence base 

through the work of competitive 

program grantees, and the sharing of 

data with third-party researchers allows 

for additional data analysis. Submitting 

evaluations and the final performance 

reports under grants to ERIC can help 

identify emerging evidence and promote 

further research. 

Section 75.591 Federal Evaluation— 

Cooperation by a Grantee 

Current Regulation: Section 75.591 

requires grantees to cooperate in the 

Department’s efforts to evaluate the 

program supporting their project. 

Proposed Regulation: We propose to 

clarify the types of activities that 

grantees could be expected to undertake 

as part of their participation in a Federal 

program evaluation. 

Reasons: Although the current 

regulation makes it clear that grantees 

must cooperate with the Secretary’s 

evaluation of the program, it does not 

provide potential applicants 

information about what that cooperation 

might entail. The proposed regulation 

would provide increased transparency 

about the types of activities in which a 

grantee may be required to participate. 

For example, a grantee may be required 

to participate in a randomized 

controlled trial conducted by the 

Department, and we think that it is 

important to provide clarity, where 

possible, on grantee expectations under 

the regulation. 

Section 75.600–75.617 Construction 

Current Regulations: Sections 75.600– 

75.617 cover various regulations related 

to construction projects and the 

acquisition of real property. 

Propose Regulation: We propose to 

amend certain regulations related to 

construction projects and real property 

acquisition in parts 75, 76, and 77. The 

proposed changes to parts 76 and 77 are 

addressed in more detail in the 

applicable sections of this preamble. 

Specifically, the proposed changes 

include the following: 

• A reorganization of §§ 75.600– 

75.614 for a more logical progression of 

the statutory and regulatory 

requirements at each stage of the 

construction project. The proposed 

regulations are organized to progress 

through all the stages of a construction 

project, through Department approval 

(§ 75.601), planning the project 

(§ 75.602), beginning the project 

(§ 75.603), during the project (§ 75.604), 

and after the project (§ 75.605). 

• Clarifying that the Secretary 

considers a grantee’s compliance with 

specific statutes and regulations related 

to construction prior to approval of the 

construction project (proposed 

§ 75.602(c)). 

• Adding specific provisions 

regarding real property acquisition that, 

in part, incorporate requirements from 

existing governmentwide assurances, 

including nondiscrimination assurances 

(proposed § 75.606). These provisions 

mirror the construction provisions in 

proposed § 75.601 to clarify that real 

property projects must also receive 

Department approval. 

• Incorporating, and updating, as 

appropriate, applicable cross references 

to the Uniform Guidance and other 

applicable law in the various stages of 

the construction project in various 

sections of the regulations. 

• Moving and consolidating the 

requirements currently in §§ 75.607– 

75.608 into proposed § 75.602. We do 

not propose any substantive changes to 

the current requirements in § 75.607 or 

§ 75.608. 

• Decreasing the period for which the 

grantee must retain title to the site from 

50 years to 25 years in proposed 

§ 75.610. 

• Clarifying the requirements of the 

National Environmental Policy Act of 

1969 (NEPA) (proposed § 75.611). This 

section would not create a requirement, 

but rather provide additional guidance 

that the NEPA requirements apply to 

‘‘major Federal projects’’ as defined by 

NEPA. 

• Moving the requirements of 

§ 75.611 (Avoidance of flood hazards) 

and § 75.617 (Compliance with the 

Coastal Barrier Resources Act) to 

proposed § 75.612 and § 75.613, 

respectively. We do not propose any 

substantive changes to the current 

requirements in § 75.611 or § 75.617. 

• Clarifying the process and roles of 

the Secretary and State reviewing a 

construction project involving historic 

preservation (proposed §§ 75.614 and 

76.600). We do not propose any 

substantive changes to the current 

requirements in § 75.602. 

• Adding the applicability of the new 

Build America, Buy America Act to 

construction projects (proposed 

§ 75.615). This section explains that a 

grantee must comply with the 

requirements of the Build America, Buy 

America Act, Public Law 117–58, 

§ 70901–70927 and implementing 

regulations in 2 CFR part 184. 

• Updating the requirements of 

§ 75.616 (Energy conservation) to 

require compliance with the most 

current ASHRAE standards. The current 

regulation requires compliance with 

standards from 1975, 1977, and 1980, 

respectively. 

• Moving the requirements of 

§ 75.610 (Access by the handicapped) to 

proposed § 75.617 and updating the title 

to ‘‘Access for individuals with 

disabilities.’’ We do not propose any 

substantive changes to the current 

requirements in § 75.610. 

• Moving and consolidating the 

requirements currently in § 75.609 

(Comply with safety and health 

standards) into proposed § 75.618. We 

do not propose any substantive changes 

to the current requirements in § 75.609. 

Reasons: The purpose of these 

proposed changes is to update the 

current construction regulations in 

response to statutory changes and 

related issues that have arisen over the 

last thirty years, as many of the 

regulations for this section have not 

been updated since 1992; to better align 

the regulations to the Uniform Guidance 

that was first promulgated in 2014 and 

updated in 2020; and to improve clarity 

and transparency regarding Federal 

program operations. The Department 

proposes to decrease the period in 

proposed § 75.610 because we found 

that grantees with site leases had 

difficulty establishing that they had an 

option to extend their lease for 50 years. 

Rather, we propose to reduce to 25 years 

or the useful life of the construction, 

which we think more closely aligns 

with the Federal investment. We also 

propose to update these regulations to 

include the requirements grantees must 

follow during construction projects 

under the Build America, Buy America 

Act, Pub. L. 117–58, § 70901–70927. 

The Build America, Buy America Act 

was enacted as part of the overall 

Infrastructure Investment and Jobs Act 

in November 2021. The purpose of the 

Build America, Buy America Act is to 

create demand for domestically 

produced goods, helping to sustain and 

grow domestic manufacturing. 

Section 75.618 Charges for Use of 

Equipment or Supplies 

Current Regulation: Section 75.618 

states that a grantee may not charge for 

ordinary use of equipment or supplies. 

Proposed Regulation: We propose to 

repurpose § 75.618 for use under the 

Construction subheading and move the 

current § 75.618 to currently unused 


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1The Department’s Plan and Policy Development 

Guidance for Public Access is available at https:// 

ies.ed.gov/funding/pdf/EDPlanPolicy

DevelopmentGuidanceforPublicAccess.pdf. 

2The Office of Science and Technology Policy’s 

memorandum is available at https://

obamawhitehouse.archives.gov/sites/default/files/ 

microsites/ostp/ostp_public_access_memo_

2013.pdf. 

§ 75.619. We do not propose any 

changes to the text of this section. 

Reasons: To create space for an 

additional section under the 

Construction heading regarding safety 

and health standards, we propose to 

move current § 75.618 to § 75.619. 

Section 75.620 General Conditions on 

Publication 

Current Regulation: Section 75.620(b) 

includes the text of a statement that 

grantees must include in any 

publication that contains project 

materials. 

Proposed Regulation: The proposed 

revision would update the required 

statement with current and more 

comprehensive language, including 

current forms of publication, such as on 

a website or a web page. 

Reasons: The statement was last 

updated in 1980. Since then, Federal 

Government endorsement disclaimers, 

including the one in § 75.620(b), have 

evolved to be more comprehensive. We 

propose updating the statement to 

mirror the standard disclaimer used by 

the Department in other contexts, such 

as what the Department may require on 

work products developed by 

Department contractors. In addition, 

methods of publication have changed 

since 1980, to include websites and web 

pages. 

Section 75.623 Public Availability of 

Grant-Supported Research Articles 

Current Regulation: None. 

Proposed Regulation: We propose to 

add a new § 75.623 to require each 

grantee that prepares a peer-reviewed 

scholarly publication as part of its grant 

award or based on grant-funded 

research to make the publication 

available to the public by submitting the 

final peer-reviewed scholarly 

publication to ERIC. To support 

§ 75.620, we also propose to add a 

definition of ‘‘peer-reviewed scholarly 

publication’’ under § 77.1(c). 

Reasons: This section would align the 

practice of the entire Department with 

the current practice of IES, which 

requires all its grantees to make their 

peer-reviewed publications available to 

the public in this manner. Currently, 

these materials are exempt from the 

open licensing requirements in 2 CFR 

3474.20. Applying the requirement in 

this section to peer-reviewed 

publications produced under grants 

made by other offices in the Department 

is in line with the Department’s Plan 

and Policy Development Guidance for 

Public Access,1 with the Office of 

Science and Technology Policy’s 

memorandum, Increasing Access to the 

Results of Federally Funded Research,2

and would ensure that the results of 

grant-funded research are available to a 

wider array of Department partners and 

other interested parties than is currently 

the case. 

Section 75.700 Compliance With the 

U.S. Constitution, Statutes, Regulations, 

Stated Institutional Policies, and 

Applications 

Current Regulation: Section 75.700 

states that grantees shall comply with 

and uses Federal funds in accordance 

with applicable statutes, regulations, 

and approved applications. 

Proposed Regulation: We propose to 

revise § 75.700 to include Executive 

orders in addition to statutes, 

regulations, and approved applications. 

Reasons: We propose this revision to 

align § 75.700 to § 75.708, which 

includes the requirement for 

subgrantees to comply with Executive 

orders. 

Section 75.708 Subgrants 

Current Regulation: Section 75.708(b) 

states that the Secretary may, through an 

announcement in the Federal Register, 

authorize subgrants when necessary to 

meet the purposes of a program, and 

paragraph (e) states that grantees may 

contract for supplies, equipment, 

construction, and other services. 

Proposed Regulation: We propose to 

revise paragraph (b) to state that this 

authorization may take place ‘‘through 

an announcement in the Federal 

Register or other reasonable means of 

notice.’’ We propose to revise paragraph 

(e) to clarify that, when subgrants are 

not allowed, grantees are still 

authorized to contract, as needed, for 

supplies, equipment, and other services. 

Reasons: There may be circumstances 

in which Federal Register notification is 

not the most efficient or effective way 

for the Secretary to authorize subgrants. 

To account for these situations, we 

propose adding more flexibility to the 

current regulation. We also propose to 

clarify when and how contracts for 

supplies, equipment, and other services 

can be used when subgrants are not 

allowed. 

Section 75.720 Financial and 

Performance Reports 

Current Regulation: Section 75.720 

sets out the financial and performance 

reporting requirements that grantees 

must meet. 

Proposed Regulation: We propose to 

add a new paragraph (d) that would 

require grantees to publish, on a publicfacing website, the reports they submit 

to the Secretary under § 75.720 upon 

request of the Secretary. Under this new 

paragraph, the Secretary could choose 

which grant competitions would be 

subject to this requirement. The 

Department expects that any such 

publication on a public-facing website 

would be consistent with applicable 

accessibility requirements and in 

accordance with privacy laws. 

Reasons: This requirement would 

increase transparency with respect to 

grantee performance and provide useful 

information on the effectiveness of 

projects supported by Department grant 

funds to grantee participants and 

beneficiaries as well as the general 

public. 

Section 75.901 Suspension and 

Termination 

Current Regulation: Section 75.901 

indicates that the Secretary may use the 

Office of Administrative Law Judges 

(OALJ) to resolve disputes concerning a 

variety of matters that are not subject to 

other proceedings. 

Proposed Regulation: We propose to 

revise the introductory language to this 

regulation by removing the following 

words: ‘‘that are not subject to other 

procedures.’’ 

Reasons: This proposed change would 

clarify the authority of the Secretary to 

use the OALJ to resolve disputes on the 

matters identified in § 75.901(a)–(f). 

Part 76 State-Administered Programs 

Section 76.1 Programs to Which Part 

76 Applies 

Current Regulation: Section 76.1 

describes the programs to which part 76 

applies. Paragraph (a) of § 76.1 

references ‘‘each State-administered 

program’’ while paragraph (b) references 

‘‘a State formula grant program.’’ 

Proposed Regulation: We propose to 

revise the language in both paragraphs 

to clarify that part 76 applies to ‘‘Stateadministered formula grant programs.’’ 

We also propose to make conforming 

changes, as necessary, throughout this 

part, including the title for this part. 

Reasons: Inconsistent use of terms 

within part 76 could create confusion 

about its applicability. These updates 

would clarify that all provisions of part 


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76 apply only to ‘‘State-administered 

formula grant programs.’’ 

Section 76.50 Statutes Determine 

Eligibility and Whether Subgrants Are 

Made 

Current Regulation: Section 76.50 

describes the circumstances in which 

the Secretary makes a grant to a State 

agency, either as directed by the 

applicable statute and regulation or as 

designated by the State consistent with 

the applicable statute and regulation. 

The regulation states explicitly that the 

applicable statute determines the extent 

to which a State may use grant funds 

itself or make subgrants. Regarding 

subgrants, § 76.50(c) states that the 

regulations in part 76 on subgrants 

apply to a program only if subgrants are 

authorized under that program, and 

paragraph (d) states that the applicable 

statute determines an applicant’s 

eligibility for a subgrant. 

Proposed Regulation: We propose to 

modify § 76.50 in six general ways. 

First, we propose to change the heading 

to read ‘‘Basic Requirements for 

Subgrants.’’ Second, we propose to add 

references to a State-administered 

formula grant program’s regulations 

throughout. Third, we propose to make 

clear in new paragraph (b) that States 

may make subgrants using funds from 

State-administered formula grant 

programs unless prohibited by their 

authorizing statutes, implementing 

regulations, or the terms and conditions 

of their awards. Fourth, we propose to 

delete paragraphs (c) on how other 

requirements in part 76 apply to 

subgrants and (d), which was a previous 

statement about entities eligible for 

subgrants, and to incorporate essential 

requirements into new paragraph (b). 

Fifth, we propose to add a new 

paragraph (c) to explicitly identify 

grantee responsibility for subgrantee 

monitoring consistent with 2 CFR 

200.332. Finally, we propose to add a 

new paragraph (d) to clarify that 

subgranting prohibitions under which 

Department programs operate should 

not be construed as prohibiting grantees 

from entering into contracts for goods or 

services in accordance with 2 CFR part 

200, subpart D—Post Federal Award 

Requirements (2 CFR 200.317–200.326). 

Reasons: We propose to modify this 

section to ensure that Stateadministered formula grant programs 

have maximum flexibility to make 

subgrants. To that end, we propose to 

revise the heading to signal to States 

that subgrants are allowed, unless 

specifically prohibited by statute, 

regulation, or the terms and conditions 

of a grant award. Under the current 

regulations, some State-administered 

formula grant programs have interpreted 

statutory silence as meaning that 

subgranting is not permissible. We 

believe that the proposed regulations 

would address this unintended 

consequence through the changes 

proposed to the heading and to new 

paragraph (b). However, we may 

prohibit subgranting under the terms 

and conditions of a grant award, as 

appropriate, such as when subgranting 

would be counter to fundamental 

statutory or regulatory requirements for 

a program. We also propose to refer to 

both applicable statutes and regulations 

throughout the provision, rather than 

just statutes, in case the applicable 

regulations provide necessary 

clarification. We propose to remove 

current paragraph (b) because it does 

not provide any guidance that is not 

already provided in a program’s 

authorizing statute. We propose to 

incorporate essential requirements from 

paragraphs (c) and (d) into new 

paragraph (b). As a result, we propose 

to delete current paragraphs (c) and (d) 

as no longer necessary. We propose to 

add new paragraph (c) to highlight 

grantee responsibilities for monitoring 

subgrantees to encourage fiscal 

responsibility, transparency, and 

appropriate control of taxpayer funds. 

We propose to add a new paragraph (d) 

to clarify that, regardless of the 

authority to subgrant, a grantee is 

authorized to contract for supplies, 

equipment, and other services in 

accordance with 2 CFR part 200, subpart 

D—Post Federal Award Requirements (2 

CFR 200.317–200.326. 

Section 76.101 The General State 

Application 

Current Regulation: Section 76.101 

requires a State that makes subgrants to 

LEAs under a program subject to this 

part to have on file with the Secretary 

a State plan that meets the requirements 

of section 441 of GEPA (20 U.S.C. 

1232d). 

Proposed Regulation: We propose to 

revise § 76.101 to make clear that the 

requirements of section 441 of GEPA do 

not apply to a State plan submitted for 

a program under the ESEA. 

Reasons: Section 8304(b) of the ESEA 

(20 U.S.C. 7844(b)) states that the 

requirements of section 441 of GEPA do 

not apply to State plans under the 

ESEA. The purpose of this change is to 

align the regulations with that statutory 

provision. 

Section 76.102 Definition of State Plan 

for Part 76 

Current Regulation: Section 76.102 

includes a table specifying applications 

or other documents required under 

various State-administered formula 

grant programs that, for the purpose of 

part 76, are considered ‘‘State plans.’’ 

Proposed Regulation: We propose to 

remove the table from § 76.102 and to 

describe a State plan, as that term is 

used in part 76, as ‘‘any document that 

the applicable statutes and regulations 

for a State-administered formula grant 

program require a State to submit in 

order to receive funds for the program.’’ 

To the extent that any provision of part 

76 conflicts with program-specific 

implementing regulations related to the 

plan, the program-specific 

implementing regulations govern. 

Reasons: Current § 76.102 includes a 

table intended to list all programs that 

are covered by the State plan regulations 

in part 76. However, some of the listed 

programs no longer exist. Other 

programs have been renamed under a 

reauthorized statute. Rather than update 

the table of programs, given that 

programs may become outdated in the 

future, we believe that a definition 

aligned with governing statutes and 

regulations would be the best way to 

convey the intended scope of the 

provision. In addition, the proposed 

regulations would make clear that, if 

any provision of part 76 conflicts with 

program-specific implementing 

regulations related to the plan, the 

program-specific implementing 

regulations govern. 

Section 76.103 Multi-Year State Plans 

Current Regulation: Section 76.103 

makes clear that a State plan will be 

effective for a period of more than one 

fiscal year, to be determined by the 

Secretary or by regulations. It authorizes 

the Secretary to stagger submission of 

State plans and identifies numerous 

programs to which the section does not 

apply. 

Proposed Regulation: We propose to 

simplify § 76.103 by deleting the list of 

programs to which the provision does 

not apply. Instead, we would make clear 

that a State plan may be effective for 

more than one year unless otherwise 

specified by statute, regulation, or the 

Secretary. In addition, we remove the 

note at the end of this section. 

Reasons: All the programs listed in 

§ 76.103(c) have been reauthorized or 

repealed since the provision was 

promulgated in 1980. Rather than listing 

other programs that could become 

outdated, we would add language that 

affords flexibility for a multiyear State 

plan unless a statute, regulation, or the 

Secretary specifies otherwise. We also 

propose to remove the note at the end 

of this section because it is outdated and 

no longer needed. 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 89, No. 8 / Thursday, January 11, 2024 / Proposed Rules 1995 

Sections 76.125–76.137 Consolidated 

Grant Applications for Insular Areas 

Current Regulation: The Department’s 

consolidated grant authority regulations 

in part 76, as well as in the definitions 

of ‘‘State’’ in §§ 77.1(c) and 79.2, refer to 

the Trust Territory of the Pacific Islands. 

In addition, § 76.125(c) states that the 

Secretary may make annual 

consolidated grants to assist an Insular 

Area in carrying out a Department Stateadministered formula grant program. 

The following sections then refer to 

programs listed in § 76.125 as being 

eligible for consolidation. 

Proposed Regulations: We propose to 

update the regulations to remove all 

references to the Trust Territory of the 

Pacific Islands. In addition, the 

proposed regulations would revise 

§ 76.125(c) to clarify that grantees may 

consolidate grants only if not otherwise 

prohibited from doing so by applicable 

law. Also, we propose to change all 

references in the following sections 

from ‘‘programs listed in § 76.125(c)’’ to 

‘‘State-administered formula grant 

programs.’’ We also propose to revise 

the examples in §§ 76.128 and 76.129 to 

update the statutory references, and to 

make conforming changes to remove the 

term ‘‘Trust Territory of the Pacific 

Islands,’’ from the definitions of ‘‘State’’ 

in §§ 77.1(c) and 79.2. 

Reasons: The Trust Territory of the 

Pacific Islands was a United Nations 

trust territory administered by the 

United States from 1947 to 1986. During 

the latter part of that time, it was 

eligible for Department program funding 

and services much like the Outlying 

Areas of American Samoa, the 

Commonwealth of the Northern Mariana 

Islands, Guam, and the U.S. Virgin 

Islands. For that reason, it was included, 

in EDGAR, in the Department’s 

consolidated grant authority regulations 

as well as in the EDGAR definitions of 

‘‘State’’ in §§ 77.1(c) and 79.2. 

The trusteeship ended in 1986 and 

from it emerged the Federated States of 

Micronesia, the Republic of the 

Marshall Islands, and the Republic of 

Palau (collectively, the Freely 

Associated States). While the Freely 

Associated States still have a special 

relationship with the United States and 

each of them receives certain funds 

through the Department, as provided in 

their Compacts of Free Association with 

the United States, they do not receive 

funds as part of the Trust Territory of 

the Pacific Islands, which no longer 

exists. On this point, as a purely 

technical matter, we propose to delete 

the outdated reference to the Trust 

Territory of the Pacific Islands. 

The change to § 76.125(c) would 

clarify that consolidation may take place 

only in a manner that is consistent with 

applicable law. For clarity, we propose 

to update references elsewhere to 

§ 76.125(c) to refer directly to ‘‘Stateadministered formula grant programs.’’ 

Sections 76.140–76.142 State Plan 

Amendments 

Current Regulation: Section 76.140 

requires a State to amend its State plan 

if the Secretary determines that an 

amendment is essential or if there is a 

significant and relevant change 

regarding the plan. Section 76.141 

requires a State to use the same 

procedures when amending its State 

plan as it did when submitting the plan 

to the Secretary. Section 76.142 requires 

the Secretary to use the same 

procedures to approve an amendment as 

the Secretary used when reviewing and 

approving the initial State plan. 

Proposed Regulation: We propose to 

remove duplicate language in 

§ 76.140(b) regarding when an 

amendment is needed. New proposed 

paragraph (c) would incorporate current 

§ 76.141 with revisions that would 

allow the Secretary to prescribe 

different procedures for a State to 

amend its State plan based on the 

characteristics of a particular Stateadministered formula grant program. 

We propose to remove §§ 76.141– 

76.142. 

Reasons: The current regulations, in 

§ 76.140(b), go into greater detail than 

necessary about the kinds of changes 

that result in an amendment; the 

proposed regulations would simplify 

and clarify the regulations by stating 

that a State must submit an amendment 

whenever there is a significant and 

relevant change in information or 

assurances in the State plan. The 

language in current § 76.140(b)(2) and 

(b)(3) could be included in the general 

‘‘information’’ in the State plan and thus 

we propose combining the provisions in 

proposed § 76.140(b)(1). Current 

§§ 76.141–76.142 are overly prescriptive 

in requiring States and the Secretary to 

use the same process for submitting and 

approving amendments as they used 

when submitting and approving an 

initial State plan. Those processes may 

be burdensome and may not always be 

appropriate for an amendment to a State 

plan. We propose to remove current 

§ 76.141 and add a new paragraph (c) to 

§ 76.140, which seeks to provide 

flexibility so that the Secretary may 

prescribe different procedures for States 

to use based on the specific Stateadministered formula grant program. 

The proposed regulations would also 

remove the requirement in current 

§ 76.142 that the Secretary follow the 

same procedures when approving an 

amendment as the Secretary used to 

approve the initial State plan in order to 

allow the Secretary discretion to 

streamline the approval of amendments. 

Section 76.301 Local Educational 

Agency Application in General 

Current Regulation: Section 76.301 

requires an LEA that applies for a 

subgrant under a program subject to part 

76 to have on file with the State an 

application that meets the requirements 

of section 442 of GEPA (20 U.S.C. 

1232e). 

Proposed Regulation: We propose to 

make clear that the requirements of 

section 442 of GEPA do not apply to an 

LEA application for a program under the 

ESEA. 

Reasons: Section 8306(b) of the ESEA 

(20 U.S.C. 7846(b)) states that the 

requirements of section 442 of GEPA do 

not apply to LEA plans under the ESEA. 

We propose this change to align the 

regulation with the statute. 

Section 76.401 Disapproval of an 

Application—Opportunity for a Hearing 

Current Regulation: Section 76.401 

sets forth the requirements that a state 

educational agency (SEA) must meet 

when disapproving an application for a 

subgrant in one of the Department’s 

covered State-administered formula 

grant programs, which are identified in 

a table in the regulations. The regulation 

restates the requirements in section 432 

of GEPA (20 U.S.C. 1231b–2), including 

the due process an SEA must provide to 

an applicant for a subgrant before (or 

after, in some cases) the SEA either: (1) 

disapproves or fails to approve a 

subgrant application in whole or in part; 

or (2) fails to provide funds in amounts 

in accordance with the requirements of 

laws and regulations. Section 76.401 

also reiterates the statutory 

requirements for the relevant timelines, 

the right of an applicant to appeal an 

SEA’s final decision disapproving an 

application or failing to provide funds 

in the required amount to the Secretary, 

and the standard of review that the 

Secretary must apply in considering 

such an appeal. Section 76.401 is silent 

regarding the information that must be 

included in a notice of appeal submitted 

to the Secretary. Under § 76.401(b), the 

requirements for providing an 

opportunity for a hearing before 

disapproving a subgrant application do 

not apply to a State agency other than 

an SEA. 

Proposed Regulation: We propose to 

revise the regulation in current § 76.401 

in several respects by: 


ddrumheller on DSK120RN23PROD with PROPOSALS2
1996 Federal Register / Vol. 89, No. 8 / Thursday, January 11, 2024 / Proposed Rules 

(1) Removing the table of programs 

and clarifying that the requirements 

apply to State-administered formula 

grant programs administered by an SEA 

in which the SEA makes subgrants. 

(2) Clarifying that an applicant must 

include a citation to the alleged 

violation of a Federal or State statute, 

rule, regulation, or guideline governing 

the applicable program and a brief 

description of the alleged violation 

when it requests that the SEA hold a 

hearing on the application disapproval. 

(3) Requiring a notice of appeal to the 

Secretary submitted pursuant to section 

432(b) of GEPA to include, at a 

minimum, a citation to the specific 

Federal statute, rule, regulation, or 

guideline that an SEA allegedly violated 

and a brief description of the alleged 

violation. 

(4) Deleting an opportunity for a 

hearing if an SEA fails to provide funds 

in amounts required by statutes and 

regulations because § 76.401 applies 

only to disapproval of an application for 

a subgrant. Rather, the requirement that 

an SEA hold a hearing, upon request of 

a subgrantee, when the SEA fails to 

provide funds in accordance with 

applicable statutes and regulations 

would be added to § 76.783(a)(3), which 

describes other circumstances in which 

a subgrantee may request that an SEA 

hold a hearing that meets the procedural 

requirements in § 76.401. 

(5) Making numerous other changes to 

eliminate duplicate provisions. 

Reasons: For several reasons, 

described below, we propose to clarify 

that a notice of appeal to the Secretary 

must cite the specific Federal statute, 

rule, regulation, or guideline the 

appellant believes the SEA’s final 

decision violates and provide a brief 

description of the alleged violation. For 

the same reasons, we are also proposing 

to clarify that an applicant’s request to 

an SEA for a hearing must provide a 

brief description of the alleged violation 

of Federal or State statute, rule, 

regulation, or guideline governing the 

applicable program. 

Section 432 of GEPA affords a 

subgrantee that is aggrieved by the final 

action of an SEA in disapproving or 

failing to approve its application for 

funds the right to request that the SEA 

conduct a hearing and, upon receiving 

an adverse final decision, to appeal the 

SEA’s decision to the Secretary. This 

section applies only to SEAs. In some 

programs, the authorizing statute may 

require that a particular State agency be 

the sole State agency to administer the 

approved State plan, such as the 

Independent Living Services for Older 

Individuals Who are Blind program in 

section 752(a)(2) of the Rehabilitation 

Act of 1973 (29 U.S.C. 796k(a)(2)). This 

program requires that the sole State 

agency to administer the approved State 

plan be the State Vocational 

Rehabilitation Services agency that 

provides services to individuals who are 

blind in the State. Even if that State 

agency is located within an SEA, if it is 

the other State agency designated by 

statute that is the only agency 

authorized to take the final action in 

disapproving or failing to approve a 

subgrantee’s application for funds, then 

it is not the SEA that is taking the final 

action within the meaning of § 76.401, 

and this section does not apply to that 

program. 

These due process protections 

contemplate that an SEA has violated a 

Federal or State statute, rule, regulation, 

or guideline governing the applicable 

program. Clarifying that a notice of 

appeal to the Secretary must cite the 

specific Federal statute, rule, regulation, 

or guideline that the SEA allegedly 

violated will help to ensure that an 

appeal subject to GEPA and the 

procedures described in § 76.401 is 

about a violation of Federal law, 

consistent with GEPA, and not solely a 

disagreement with the SEA’s 

substantive decision. The GEPA appeal 

rights apply only when an SEA 

allegedly violates Federal law and, so, it 

follows that a GEPA appeal must, at a 

minimum, allege such a violation. 

In the past few years, the Department 

received numerous GEPA appeals that 

were without merit; these appeals often 

came from applicants whose 

applications were not selected for 

funding pursuant to a discretionary 

subgrant competition. In a large portion 

of these appeals, the primary argument 

that the appellant made was that it 

disagreed with the SEA’s assessment of 

its application. This argument is 

insufficient as a matter of law in a GEPA 

appeal because it does not allege that 

the SEA’s final decision was contrary to 

Federal laws, rules, regulations, or 

guidelines. Even so, currently, when 

such an appeal is filed, the appeal is 

fully briefed, reviewed, and adjudicated 

before the Secretary issues a final 

decision denying the appeal, thereby 

tying up SEA and Department resources 

for an extended period. 

Under our proposed revisions to 

§ 76.401(d)(3), the Secretary would be 

able to dismiss an appeal immediately 

upon receipt of a notice of appeal if it 

is apparent on the face of the notice that 

it fails to allege a violation of Federal 

statutes, rules, regulations, or guidelines 

governing the applicable program. The 

Secretary would, as a matter of practice, 

prior to dismissing a GEPA appeal, first 

request that the appellant show cause 

for why the appeal should not be 

dismissed and permit the appellant to 

revise its notice of appeal to include the 

specific Federal statute, rule, regulation, 

or guideline the appellant alleges the 

SEA violated. By asking that the 

appellant show cause prior to 

dismissing the appeal, the Secretary 

would not cause undue harm to 

appellants unrepresented by legal 

counsel who submit their appeals on 

their own behalf and might have 

omitted the specific Federal statute, 

rule, regulation, or guideline the 

appellant alleges the SEA violated from 

the initial version of the appeal. Absent 

the appellant’s ability to show cause, 

however, the appeal would be 

dismissed, thereby limiting GEPA 

appeals to those that fall under the 

Secretary’s authority under section 432 

of GEPA: those that allege a violation of 

Federal law, rule, regulation, or 

guideline governing the applicable 

program. 

The proposed regulations would also 

make changes to clarify, streamline, and 

delete duplicative information. For 

example, current § 76.401 includes a 

table of programs to which the section 

applies. Some programs listed no longer 

exist. Other programs have been 

renamed under a reauthorized statute. 

Rather than update the table of 

programs, which may become outdated, 

we believe that clarifying that the 

procedures described in the section 

apply only to an applicant that is 

aggrieved by the final action of an SEA 

with respect to disapproving or failing 

to approve its application for funds 

under a State-administered formula 

grant program ensures that, over the 

long term, the text does not become 

outdated. Additionally, we propose to 

move the requirements with respect to 

a subgrantee’s allegation that an SEA 

failed to provide funds in amounts in 

accordance with the requirements of 

applicable statutes and regulations to 

§ 76.783(a)(3). Section 76.401 is about 

disapproval of an application, and it is, 

therefore, more logical to include the 

‘‘failing to provide funds’’ provision in 

§ 76.783, which describes other 

circumstances in section 432 of GEPA in 

which a subgrantee may request a 

hearing and, ultimately, appeal to the 

Secretary. This does not change the 

procedural requirements that apply 

when a subgrantee alleges that an SEA 

failed to provide funds in amounts 

prescribed by law. 

The other changes in proposed 

§ 76.401 are for consistency and clarity. 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 89, No. 8 / Thursday, January 11, 2024 / Proposed Rules 1997 

Section 76.560–76.569 Indirect Cost 

Rates 

Current Regulation: Sections 76.560– 

76.569 describe the application of 

indirect costs under State-administered 

formula grant programs, including who 

approves indirect costs rates and how 

they are applied. 

Proposed Regulation: The Uniform 

Guidance, in conjunction with EDGAR, 

governs Department grants and, 

therefore, these provisions should be 

closely aligned with one another. The 

proposed revisions would align these 

sections of EDGAR with the Uniform 

Guidance, include cost allocation plans 

along with indirect costs rates, and 

provide clarity on the application of 

indirect cost rates, as well as the 

addition of § 76.562, specific to 

reimbursement of indirect costs. 

Reasons: These sections of EDGAR 

currently do not reflect updates to the 

Uniform Guidance, including the 

addition of the de minimis rate, 

referencing cost allocation plans as 

performing a role equivalent to indirect 

costs rate, and clarifications on 

restricted rates and this alignment is 

necessary to ensure that there is no 

confusion about these requirements. 

Moreover, the proposed changes are 

intended to add clarity to how indirect 

cost rates are applied, the indirect cost 

rate options an entity has, and 

reimbursement of indirect costs. 

Section 76.600 Where To Find 

Construction Regulations 

Current Regulations: Section 76.600 

provides section references to the 

EDGAR regulations on construction. 

Propose Regulation: We propose to 

amend certain regulations related to 

construction projects and real property 

acquisition in parts 75, 76, and 77. 

Specifically for § 76.600, the proposed 

regulations would update citations to 

align with the proposed revision in part 

75. 

Reasons: The purpose of these 

proposed changes is to update the 

current regulations in response to 

statutory changes and related issues that 

have arisen, as many of the regulations 

for this section have not been updated 

since 1992; to better align the 

regulations to the Uniform Guidance; 

and to improve clarity and transparency 

regarding Federal program operations. 

The proposed changes would also 

update the citations to the regulations 

on construction in part 75 and set out 

the State’s responsibilities when 

approving construction projects. 

Section 76.650–76.662 Participation of 

Students Enrolled in Private Schools 

Current Regulation: Sections 76.650– 

76.662 include general requirements 

applicable to State-administered 

formula grant programs that require a 

grantee or subgrantee to provide for 

participation by students enrolled in 

private schools. 

Proposed Regulation: We propose to 

amend section 76.650 and remove 

§§ 76.651–76.662. As a result, we also 

propose updates to § 75.119, which 

cross-references § 76.656, and § 75.650, 

which cross-references §§ 76.650– 

76.662. In addition, we propose to 

delete § 299.6(c), which provides that 

§§ 76.650–76.662 do not apply to the 

programs covered under § 299.6(b). 

Reasons: Sections 76.650–76.662 are 

currently unchanged since they were 

issued in 1980. Since then, applicable 

statutory requirements have changed, 

and the Department has issued programspecific regulations regarding the 

provision of services to private school 

children, teachers and other educational 

personnel, and families. These include 

the following regulations: (1) 34 CFR 

200.62–200.68, applicable to the 

provision of equitable services under 

part A of Title I of the ESEA; (2) 

§§ 299.6–299.10, applicable to equitable 

services for programs subject to the 

requirements in section 8501 of the 

ESEA; and (3) 34 CFR 300.130–300.144, 

applicable to equitable services under 

part B of the Individuals with 

Disabilities Education Act (IDEA). 

Therefore, we propose to remove 

§§ 76.651–76.662 because they are 

unnecessary, redundant, and, in some 

instances, inconsistent with current law. 

We propose to amend § 76.650 to 

reference §§ 299.7–299.11 to cover any 

State-administered formula grant 

program that requires the provision of 

services to private school children, 

teachers and other educational 

personnel, and families and that is not 

otherwise governed by applicable 

regulations. We believe that this 

approach would ensure greater 

alignment across programs and reduce 

the potential for confusion. These 

proposed changes are for clarity and 

would not substantively affect the 

services and assistance available to 

private school students, educators, or 

families. 

Section 76.665 Providing Equitable 

Services to Students and Teachers in 

Non-Public Schools 

Current Regulation: Section 76.665 

applies to providing equitable services 

to children and teachers in non-public 

schools under the CARES Act. It was 

necessary because equitable services 

under the CARES Act were not 

governed by the provisions in part 299. 

Proposed Regulation: We propose to 

delete § 76.665. 

Reasons: Section 76.665 is no longer 

needed because funds under the CARES 

Act are no longer available for 

obligation. Moreover, the regulations on 

determining the proportional share 

under § 76.665(b) have been invalidated 

by several United States district courts 

(see, e.g., Michigan v. DeVos, 481 

F.Supp.3d 984 (N.D. Cal. 2020) and 

Washington v. DeVos, 481 F.Supp.3d 

1184 (W.D. Wash. 2020)). 

Sections 76.670–76.677 Procedures for 

Bypass 

Current Regulation: Sections 76.670– 

76.677 establish procedural 

requirements applicable to programs 

under which the Secretary is authorized 

to waive requirements for providing 

services to private school children and 

implement a bypass under which the 

Department assumes responsibility for 

providing those services. 

Proposed Regulation: We propose to 

remove §§ 76.670–76.677 and add 

§§ 299.18–299.28 in a new subpart G of 

part 299 and amend the requirements to 

reflect statutory changes. 

Reasons: Currently, the Secretary is 

authorized to implement a bypass only 

under ESEA State-administered formula 

grant programs and part B of the IDEA. 

With respect to part B of the IDEA, the 

Department has established programspecific regulations applicable to a 

bypass. Because the current bypass 

regulations in §§ 76.670–76.677 apply 

only to applicable ESEA Stateadministered formula grant programs, it 

is appropriate to remove these 

requirements from part 76, which 

applies to more than the ESEA, and add 

similar provisions as §§ 299.18–299.28 

of part 299, which establishes uniform 

administrative rules for ESEA programs. 

We describe §§ 299.18–299.28 

elsewhere in this document. 

Section 76.783 State Educational 

Agency Action—Subgrantee’s 

Opportunity for a Hearing 

Current Regulation: Section 76.783 

requires an SEA to provide a subgrantee 

an opportunity for a hearing under 

certain circumstances. With respect to 

an SEA, the regulation cross-references 

§ 76.401, which restates the 

requirements from section 432 of GEPA, 

including the due process an SEA must 

provide to subgrantees if the SEA either: 

(1) orders the repayment of misspent or 

misapplied Federal funds; or (2) 

terminates further assistance for an 

approved project. 


ddrumheller on DSK120RN23PROD with PROPOSALS2
1998 Federal Register / Vol. 89, No. 8 / Thursday, January 11, 2024 / Proposed Rules 

Proposed Regulation: The proposed 

regulation would add to § 76.783 the 

requirement currently in § 76.401 that 

an SEA hold a hearing, upon request of 

a subgrantee, when the SEA fails to 

provide funds in amounts in accordance 

with the requirements of statutes, rules, 

regulations, or guidelines. 

Reasons: The proposed regulation 

would move the requirements with 

respect to a subgrantee’s allegation that 

an SEA failed to provide funds in 

amounts in accordance with the 

requirements of statutes, rules, 

regulations, and guidelines from 

§ 76.401 to § 76.783. Section 76.401 is 

about disapproval of an application, and 

it is, therefore, more logical to include 

the ‘‘failing to provide funds’’ provision 

in § 76.783, which describes other 

circumstances under section 432 of 

GEPA in which a subgrantee of an SEA 

may request a hearing and, ultimately, 

appeal to the Secretary. This provision 

does not change the procedural 

requirements that apply when an SEA is 

alleged to have failed to provide funds 

in amounts prescribed by law; rather, it 

moves the requirement to a more 

relevant section of this part. 

Part 77 Definitions That Apply to 

Department Regulations 

Section 77.1 Definitions That Apply to 

All Department Programs 

Current Regulation: Section 77.1 

includes a number of definitions, 

including a definition of ‘‘direct grant 

program,’’ which is referred to in § 75.1. 

The regulation also includes definitions 

of ‘‘Director of the Institute of Museum 

Services,’’ ‘‘Director of the National 

Institute of Education,’’ and ‘‘State,’’ 

definitions related to evidence, and 

definitions about the scope of a project. 

The current definition of ‘‘evidencebased’’ applies to both direct grant 

programs administered under part 75 

and State-administered formula grant 

programs administered under part 76. 

These definitions support the various 

sections in EDGAR and are used by the 

Department in NIAs where relevant to 

the specific grant competition. 

Proposed Regulation: We propose to 

remove the definitions of ‘‘direct grant 

program’’ and ‘‘Director of the Institute 

of Museum Services.’’ In addition, we 

propose technical updates to the 

following definitions: ‘‘demonstrates a 

rationale,’’ ‘‘Director of the National 

Institute of Education,’’ and ‘‘evidencebased.’’ Specifically, we propose 

limiting the definition of ‘‘evidencebased’’ to only direct grant programs 

administered under part 75, to align 

with the interpretation that underlying 

authorizing statutes are the source for 

the definition of ‘‘evidence-based’’ for 

formula grant programs. We propose 

technical updates to the cross-references 

in section 77.1(b) as a result of changes 

to the Uniform Guidance. We propose 

additional updates to the definitions of 

‘‘moderate evidence,’’ ‘‘national level,’’ 

‘‘performance period,’’ ‘‘promising 

evidence,’’ ‘‘regional level’’, ‘‘strong 

evidence,’’ and ‘‘What Works 

Clearinghouse Handbooks.’’ We propose 

to add definitions of ‘‘construction,’’ 

‘‘evaluation,’’ ‘‘evidence-building,’’ 

‘‘independent evaluation,’’ and ‘‘minor 

remodeling,’’ ‘‘peer-reviewed scholarly 

publication,’’ and ‘‘quality data.’’ 

Reasons: 

Definitions of Direct Grant Program 

and Director of the National Institute of 

Education 

We propose to remove the definition 

of ‘‘direct grant program,’’ because it 

applies only to part 75 and the proposed 

regulations would define it in § 75.1. 

Although a technical change, we 

propose to replace the definition of 

‘‘Director of the National Institute of 

Education’’ with a definition of 

‘‘Director of the Institute of Education 

Sciences’’ due to a statutory change in 

the name of that position, enacted in 

2002. 

Definitions of National Level and 

Regional Level 

We propose revising the definitions of 

‘‘national level’’ and ‘‘regional level’’ to 

replace the phrase ‘‘process, product, 

strategy, or practice’’ in these two 

definitions with the term ‘‘project 

component’’ because ‘‘project 

component’’ is already defined and 

would provide more clarity. 

Definition of Project Period 

We propose clarifying, in the 

definition of ‘‘performance period,’’ that 

the ‘‘period during which funds can be 

obligated’’ is specific to grantees and not 

the Department. 

Evidence-Related Definitions 

We propose expanding the definitions 

of ‘‘moderate evidence,’’ ‘‘promising 

evidence,’’ and ‘‘strong evidence,’’ and 

the references to evidence levels for 

practice guides, effectiveness ratings for 

intervention reports, studies and 

samples in intervention reports to 

correspond with the designations on the 

What Works Clearinghouse website and 

in Version 5.0 of the What Works 

Clearinghouse Handbooks. We also 

propose to update the definition of 

‘‘What Works Clearinghouse 

Handbooks’’ to incorporate by reference 

these updated standards. 

Additionally, we propose to modify 

the definition of ‘‘moderate evidence’’ to 

allow, for example, high-quality studies 

of low-incidence populations to meet 

the standard in the context of a 

systematic review. The new definition 

of ‘‘construction’’ would give meaning 

to a term used in multiple sections in 

parts 75 and 76, and is meant to add 

clarity, as well as the proposed 

definition of ‘‘minor remodeling’’ that is 

meant to help distinguish it from 

construction. The new definition of 

‘‘evaluation,’’ a term used in various 

sections and especially in § 75.210, 

would clarify and provide a shared 

understanding of what is meant when 

this term is used. The new definition of 

‘‘evidence-building,’’ a term used in 

§ 75.210, would support the 

Department’s efforts to ensure learning 

from funded grants where rigorous 

evaluation is not appropriate but 

feedback and continuous improvement 

efforts are better suited. The new 

definition of ‘‘quality data,’’ as 

referenced in section 515 of the 

Treasury and General Government 

Appropriations Act, 2001 (Appendix C 

of Public Law 106–554) (commonly 

known as the ‘‘Information Quality 

Act’’) and further defined in the 

Department’s Information Quality Act 

Guidelines (www2.ed.gov/policy/gen/ 

guid/iq/iqg.html), would support the 

Department’s ongoing effort to improve 

the data that the Department receives 

from applicants and grantees by 

ensuring data encompass utility, 

objectivity, and integrity of the 

information. The new definition of 

‘‘independent evaluation,’’ a term used 

in § 75.590, would support the 

Department’s ongoing effort to increase 

the quality and credibility of the project 

evaluations supported by competitive 

grant programs through evaluations 

conducted independently from project 

developers and implementers. As 

discussed in greater detail in the section 

regarding §§ 76.125–76.137, the revised 

definition of ‘‘State’’ would remove the 

reference to the Trust Territory of the 

Pacific Islands. The revisions to the 

other definitions listed above would 

clarify the regulations and align with 

statutory language. 

Definition of Evidence-Based 

State-administered formula grant 

programs administered under part 76 

have their own statutory definitions of 

‘‘evidence-based’’ and limiting the 

scope of this definition to part 75 will 

help ensure that the regulatory and 

statutory definitions of ‘‘evidencebased’’ do not conflict. 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 89, No. 8 / Thursday, January 11, 2024 / Proposed Rules 1999 

Definitions of Construction and Minor 

Remodeling 

We propose adding a definition of 

‘‘construction’’ and revising the 

definition of ‘‘minor remodeling’’ under 

§ 77.1(c). This proposed definition of 

‘‘construction’’ is modeled after the 

definition of ‘‘construction’’ in the 

Impact Aid program regulations (34 CFR 

222.176(a) ‘‘Construction’’). The 

Department has found that it is 

important to define ‘‘construction’’ to 

distinguish construction activity from 

‘‘minor remodeling’’, a term already 

defined in § 77.1(c), as there has been 

confusion about what activities are 

considered construction, and which are 

considered minor remodeling. We 

propose to revise the term ‘‘minor 

remodeling’’ to more clearly indicate 

that minor remodeling is not considered 

‘‘construction’’ under the proposed 

definition. 

Definition of Peer-Reviewed Scholarly 

Publication 

We propose adding a definition of 

‘‘peer-reviewed scholarly publication’’ 

to support the use of this term in 

§ 75.620. This definition is intended to 

clarify that research is made available in 

a variety of formats, and that research 

funded by the Department that is 

submitted for publication in scholarly 

publications should also be made 

available for free by submission to ERIC. 

34 CFR Part 79—Intergovernmental 

Review of Department of Education 

Programs and Activities 

Section 79.1–79.8 Intergovernmental 

Review 

Current Regulation: Part 79 discusses 

the requirements related to 

intergovernmental review of Department 

programs and activities. 

Proposed Regulation: We propose to 

remove from §§ 79.1, 79.3, 79.4, and 

79.8 references to Section 401 of the 

Intergovernmental Cooperation Act of 

1968 and Section 204 of the 

Demonstration Cities and Metropolitan 

Development Act of 1966, which are 

outdated. 

Reasons: Section 401 of the 

Intergovernmental Cooperation Act of 

1968 and Section 204 of the 

Demonstration Cities and Metropolitan 

Development Act of 1966 are outdated, 

and we therefore propose to remove 

them from these sections. 

34 CFR Part 299—General Provisions 

Section 299.7 

Current Regulation: None. 

Proposed Regulation: We propose to 

add a new § 299.7 to incorporate the 

requirements in ESEA section 8501 for 

consultation with private school 

officials for programs that require the 

provision of equitable services to private 

school children, teachers, and other 

educational personnel. 

Reasons: This section would reflect 

the requirements for consultation with 

private school officials for programs that 

require the provision of equitable 

services to private school children, 

teachers, and other educational 

personnel. The addition of a section on 

consultation is consistent with the 

current regulations on Title I equitable 

services in § 200.63. This section would 

also clarify the requirements in section 

8501(c)(1)(H) of the ESEA, which 

reference the number of children from 

low-income families in a participating 

public school attendance area who 

attend private schools. This language is 

the same as a similar provision in 

section 1117(b)(1)(J) of the ESEA, which 

applies to equitable services under Title 

I, part A, but is not applicable to 

equitable services under other covered 

programs because participation in 

equitable services under these other 

programs is not limited to children from 

low-income families who live in a Title 

I participating public school attendance 

area. 

34 CFR Part 299—General Provisions 

Section 299.8 

Current Regulation: Section 76.660, 

which elsewhere in this document we 

propose to remove, contains information 

about the context in which a subgrantee 

may use program funds to pay for the 

services of an employee of a private 

school. 

Proposed Regulation: We propose to 

add a new § 299.8 to incorporate the 

information articulated in § 76.660, 

which we propose elsewhere in this 

document to remove. Proposed § 299.8 

would note that, in providing for the 

participation of students in private 

schools, a grantee or subgrantee may use 

program funds to pay a private school 

employee if the employee performs 

services outside of his or her regular 

hours of duty and under public 

supervision and control. While § 76.660 

refers only to subgrantees, the proposed 

§ 299.8 would also clarify that a grantee, 

in addition to a subgrantee, may pay for 

services of private school personnel if 

the relevant conditions are met. 

Reasons: Incorporating this provision 

in part 299 would consolidate 

regulations related to the participation 

of private school students and teachers 

in part 299 and clarify that the same 

approach applies whether a grantee or 

subgrantee is providing services to 

students enrolled in private schools. 

Section 299.16 What must an SEA 

include in its written resolution of a 

complaint? 

Current Regulation: None. 

Proposed Regulation: We propose to 

add a new § 299.16 to require that an 

SEA’s written resolution of a complaint 

from an organization or individual 

alleging violation of a Federal statute or 

regulation that applies to an applicable 

program include specific elements. 

Reasons: This section would add 

clarity regarding the contents of an 

SEA’s written resolution of a complaint 

to help ensure that the resolution 

includes relevant information and is 

clear, concise, and understandable to 

the parties involved. This would also 

help facilitate the Department’s timely 

review and resolution of any appeal of 

an SEA’s written resolution of a 

complaint, particularly within the 

context of equitable services appeals 

that require the Department to 

investigate and resolve an appeal within 

90 days of receipt. 

Section 299.17 What must a party 

seeking to appeal an SEA’s written 

resolution of a complaint include in its 

appeal request? 

Current Regulation: None. 

Proposed Regulation: We propose to 

add a new § 299.17 to require that 

certain elements be included in a party’s 

appeal of an SEA’s written resolution of 

a complaint. 

Reasons: This section would clarify 

what must be included in an appeal in 

order to facilitate the Department’s 

timely review and resolution of the 

appeal, particularly within the context 

of equitable services appeals that 

require the Department to investigate 

and resolve an appeal within 90 days of 

receipt. 

Section 299.18 When are bypass 

provisions applicable? 

Current Regulation: None. 

Proposed Regulation: We propose to 

add a new § 299.18, which would 

incorporate part of current § 76.670(a), 

which elsewhere in this document we 

propose to remove. Section 299.18 

would clarify those applicable ESEA 

programs under which the Secretary is 

authorized to waive the requirements 

for providing equitable services to 

private school children, teachers, and 

other educational personnel (hereafter, 

for ease of reference, ‘‘private school 

children’’) and implement a bypass. 

Reasons: Because current § 76.670(a) 

applies only to ESEA programs under 

which the Secretary is authorized to 

waive the requirements for providing 

equitable services to private school 


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children and implement a bypass, we 

propose to move this section to a new 

subpart G of part 299, which would 

contain other requirements regarding 

the provision of equitable services to 

private school children. Proposed 

§ 299.18 would delete the list of 

applicable programs contained in 

current § 76.670(a) because that list is 

out of date. 

Section 299.19 Bypass—General 

Current Regulation: None. 

Proposed Regulation: Proposed 

§ 299.19 would state the statutory 

standards that authorize the Secretary to 

implement a bypass. 

Reasons: We propose to add § 299.19 

to clarify the circumstances in which 

the Secretary is authorized to waive the 

requirements for providing equitable 

services to private school children and 

implement a bypass. 

Section 299.20 How To Request a 

Bypass 

Current Regulation: None. 

Proposed Regulation: Proposed 

§ 299.20 would clarify the 

circumstances in which a private school 

official or an agency, consortium, or 

entity, as applicable, may request a 

bypass. 

Reasons: Sections 1117(b)(6)(C) and 

8501(c)(6)(C) of the ESEA contain 

provisions added by the Every Student 

Succeeds Act that require an SEA to 

provide equitable services directly or 

through a contract with a public or 

private agency, organization, or 

institution if an appropriate private 

school official has requested that the 

SEA provide those services and 

demonstrated that an agency, 

consortium, or entity has not met the 

requirements of section 1117 or 8501, as 

applicable. If an SEA determines that it 

is appropriate to provide equitable 

services itself, a bypass request to the 

Secretary would be unnecessary. 

Accordingly, proposed § 299.20(a) 

would clarify that an appropriate 

private school official may request a 

bypass from the Secretary if an SEA 

declines to provide equitable services 

itself following a private school 

official’s request or if the failure to 

provide equitable services is by an SEA. 

Proposed § 299.20(b) would clarify that 

such a request may also be made if an 

agency, consortium, or entity is 

prohibited by law from providing 

equitable services. 

Section 299.21 Notice of Intent To 

Implement a Bypass 

Current Regulation: Section 76.671 

contains notice procedures that the 

Secretary uses prior to implementing a 

bypass, which elsewhere in this 

document we propose to remove. 

Proposed Regulation: Proposed 

§ 299.21 contains notice provisions 

essentially identical to those in current 

§ 76.671, with a few edits to conform 

language to section 8504 of the ESEA. 

Reasons: We propose to remove 

current § 76.671 and include its 

substance in proposed § 299.21 in new 

Subpart G of part 299, which contains 

other provisions regarding the provision 

of equitable services to private school 

children. 

Section 299.22 Filing Requirements 

Current Regulation: Section 76.670(b) 

contains filing requirements to request 

that the Secretary implement a bypass, 

which elsewhere in this document we 

propose to remove. 

Proposed Regulation: Proposed 

§ 299.22 contains filing requirements 

similar to those in current § 76.670(b). 

Reasons: We propose to remove 

current § 76.670(b) and include its 

substance in proposed § 299.22 in new 

Subpart G of part 299, with changes to 

replace references to facsimile 

transmission with references to 

electronic mail. 

Sections 299.23 Through 299.28

Bypass Determination Process 

Current Regulation: Sections 76.672– 

76.677, which elsewhere in this 

document we propose to remove, 

contain procedures for implementing a 

bypass. 

Proposed Regulation: Proposed 

§§ 299.23–299.28 are essentially 

identical to §§ 76.672–76.677, with a 

few edits to conform to section 8504 of 

the ESEA. 

Reasons: We propose to remove 

current §§ 76.672–76.677 and include 

their substance, with minor edits, in 

proposed §§ 299.23–299.28 in new 

subpart G of part 299, which contains 

other regulations regarding the 

provision of equitable services to private 

school children. 

Executive Orders 12866, 13563, and 

14094 

Regulatory Impact Analysis 

Under Executive Order 12866, the 

Office of Management and Budget 

(OMB) must determine whether this 

regulatory action is ‘‘significant’’ and, 

therefore, subject to the requirements of 

the Executive order and subject to 

review by OMB. Section 3(f) of 

Executive Order 12866, as amended by 

Executive Order 14094, defines a 

‘‘significant regulatory action’’ as an 

action likely to result in a rule that 

may— 

(1) Have an annual effect on the 

economy of $200 million or more (as of 

2022 but adjusted every 3 years by the 

Administrator of the Office of 

Information and Regulatory Affairs 

(OIRA) of OMB for changes in gross 

domestic product), or adversely affect in 

a material way the economy, a sector of 

the economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local, territorial, or 

Tribal governments; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impacts of entitlements, grants, user 

fees, or loan programs or the rights and 

obligations of recipients thereof; or 

(4) Raise legal or policy issues for 

which centralized review would 

meaningfully further the President’s 

priorities, or the principles stated in the 

Executive order, as specifically 

authorized in a timely manner by the 

Administrator of OIRA in each case. 

This proposed regulatory action is a 

significant regulatory action subject to 

review by OMB under section 3(f)(4) of 

Executive Order 12866, as amended by 

Executive Order 14094. 

Notwithstanding this determination, we 

have assessed the potential costs and 

benefits, both quantitative and 

qualitative, of this proposed regulatory 

action and have determined that the 

benefits would justify the costs. 

We have also reviewed these 

proposed regulations under Executive 

Order 13563, which supplements and 

explicitly reaffirms the principles, 

structures, and definitions governing 

regulatory review established in 

Executive Order 12866. To the extent 

permitted by law, Executive Order 

13563 requires that an agency— 

(1) Propose or adopt regulations only 

on a reasoned determination that their 

benefits justify their costs (recognizing 

that some benefits and costs are difficult 

to quantify); 

(2) Tailor its regulations to impose the 

least burden on society, consistent with 

obtaining regulatory objectives and 

taking into account—among other things 

and to the extent practicable—the costs 

of cumulative regulations; 

(3) In choosing among alternative 

regulatory approaches, select those 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety, 

and other advantages; distributive 

impacts; and equity); 

(4) To the extent feasible, specify 

performance objectives, rather than the 

behavior or manner of compliance a 

regulated entity must adopt; and 


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(5) Identify and assess available 

alternatives to direct regulation, 

including economic incentives—such as 

user fees or marketable permits—to 

encourage the desired behavior, or 

provide information that enables the 

public to make choices. 

Executive Order 13563 also requires 

an agency ‘‘to use the best available 

techniques to quantify anticipated 

present and future benefits and costs as 

accurately as possible.’’ OIRA has 

emphasized that these techniques may 

include ‘‘identifying changing future 

compliance costs that might result from 

technological innovation or anticipated 

behavioral changes.’’ 

We are issuing these proposed 

regulations only on a reasoned 

determination that their benefits justify 

their costs. In choosing among 

alternative regulatory approaches, we 

selected those approaches that 

maximize net benefits. Based on an 

analysis of anticipated costs and 

benefits, we believe that these proposed 

regulations are consistent with the 

principles in Executive Order 13563. 

We also have determined that this 

regulatory action would not unduly 

interfere with State, local, and Tribal 

governments in the exercise of their 

governmental functions. 

Potential Costs and Benefits 

We have reviewed the changes 

proposed in this NPRM in accordance 

with Executive Order 12866, as 

amended by Executive Order 14094, and 

do not believe that these changes would 

generate a considerable increase in 

burden. In total, we estimate that the 

proposed changes in this NPRM would 

result in a net decrease in burden of 

approximately $4,000 with transfers of 

between $109.7 and $113.8 million. 

Most of the changes proposed in this 

NPRM are technical in nature and are 

unlikely to affect the administration of 

programs or allocation of benefits in any 

substantial way. However, given the 

large number of edits proposed herein, 

we discuss each provision, other than 

those for which we are updating 

citations or cross-references and making 

other technical edits, and its likely costs 

and benefits in turn below. 

Proposed changes to §§ 75.1 and 

75.200 would simply combine currently 

existing text into a single section and 

clarify terms used. We do not expect 

that these changes will have any 

quantifiable cost, and it may benefit the 

Department and general public by 

improving the clarity of the regulations. 

The proposed deletion of § 75.4 as 

unnecessary and redundant is unlikely 

to generate any quantifiable cost and 

may benefit the Department and general 

public by improving the clarity of the 

regulations. 

Proposed changes to § 75.60, which 

would delete an outdated table and 

clarify a definition, are unlikely to 

generate any quantifiable cost and may 

benefit the Department and general 

public by improving the clarity of the 

regulations. 

Proposed changes to § 75.101 are 

unlikely to generate any meaningful cost 

and may benefit the Department and 

general public by improving the clarity 

of the regulations. 

Proposed changes to §§ 75.102 and 

75.104, which would move paragraph 

(b) of § 75.102 to § 75.104, are unlikely 

to generate any quantifiable costs and 

may benefit the Department and general 

public by improving the clarity of the 

regulations. 

Proposed changes to § 75.105, which 

add reference to an already existing 

exemption to the public comment 

period to the regulations, are unlikely to 

generate any quantifiable costs and may 

benefit the Department and general 

public by improving the clarity of the 

regulations. 

Proposed changes to § 75.109, which 

would eliminate the requirement that an 

applicant submit two copies of any 

paper applications in addition to the 

original, may reduce costs for applicants 

that submit paper applications. 

However, those savings are likely to be 

minimal, given the small incremental 

cost of photocopies and the low number 

of paper applications the Department 

receives in any year. At most, we 

estimate that it would save applicants 

$7.50 per application, assuming a 75- 

page application photocopied at a rate 

of $0.05 per page. Assuming an average 

of 50 paper applications submitted per 

year, this change would result in an 

annual savings of approximately $375. 

Proposed changes to § 75.110, which 

would more clearly specify how 

applicants must report against program 

measures and project-specific 

performance measures, are unlikely to 

generate any quantifiable costs and may 

benefit the Department and general 

public by improving the clarity of the 

regulations. 

Proposed changes to § 75.112, which 

would allow the Secretary to require 

applicants to submit a logic model, are 

unlikely to generate any quantifiable 

costs or benefits. Many grant 

competitions already include this 

requirement and, to the extent that it is 

included in additional competitions in 

the future, we do not believe that it 

would create a substantial burden for 

applicants, because we assume that 

applicants in those programs would 

likely already have conceptualized an 

implicit logic model for their 

applications and, therefore, would 

experience only minimal paperwork 

burden associated with memorializing it 

in their applications. 

Proposed changes to § 75.127, which 

would add the term ‘‘partnership’’ and 

clarify that all members of a group 

application must be eligible entities, are 

unlikely to generate any quantifiable 

costs and may benefit the Department 

and general public by improving the 

clarity of the regulations. 

The proposed deletion of §§ 75.190– 

75.192 as duplicative is unlikely to 

generate any quantifiable costs and may 

benefit the Department and general 

public by improving the clarity of the 

regulations. 

Proposed changes to § 75.201, which 

refer to selection ‘‘factors,’’ as well as 

‘‘criteria’’ are unlikely to generate any 

quantifiable costs and may benefit the 

Department and general public by 

improving the clarity of the regulations. 

Proposed changes to § 75.210, which 

would clarify word choice and make 

updates to language based on past 

experience in using the current 

selection criteria and factors, are 

unlikely to generate any quantifiable 

costs and may benefit the Department 

and general public by improving the 

clarity of the regulations. 

Proposed changes to § 75.216, which 

would remove paragraphs (a) and (d) 

and revise the section heading, are 

unlikely to generate any quantifiable 

costs and may benefit the Department 

and general public by improving the 

clarity of the regulations and providing 

the Department additional flexibility in 

considering applications. 

Proposed changes to § 75.217, which 

would remove the word ‘‘solely’’ and 

add ‘‘and any competitive preference 

points,’’ are unlikely to generate any 

quantifiable costs and may benefit the 

Department and general public by 

improving the clarity of the regulations. 

Proposed changes to § 75.219, which 

would reorganize the section to improve 

clarity, are unlikely to generate any 

quantifiable costs and may benefit the 

Department and general public by 

improving the clarity of the regulations. 

Proposed changes to § 75.221, which 

would revise the section to improve 

clarity and remove unnecessary 

language, are unlikely to generate any 

quantifiable costs and may benefit the 

Department and general public by 

improving the clarity of the regulations. 

Proposed changes to § 75.222, which 

would update the mailing address for 

unsolicited applications, are unlikely to 

generate any quantifiable costs and may 

benefit the Department and general 


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public by improving the clarity of the 

regulations. 

The proposed change to § 75.225 

would change the current term ‘‘novice 

applicant’’ to ‘‘new potential grantee’’ 

and revise the definition to provide 

greater flexibility to the Department in 

classifying applicants as ‘‘new potential 

grantees.’’ We believe that this proposed 

regulation may result in a number of 

changes in the behavior of both 

Department staff and applicants. First, 

we believe that the additional flexibility 

in the new definition will increase the 

number of competitions in which 

§ 75.225 is used. Second, we believe 

that it may result in additional 

applicants submitting applications for 

competitions in which § 75.225 is used. 

Finally, we believe that the additional 

applicants, in conjunction with any 

absolute or competitive preference 

associated with the revised section, may 

shift at least some of the Department’s 

grants among eligible entities. However, 

because this revised standard would 

neither expand nor restrict the universe 

of eligible entities for any Department 

grant program, and since application 

submission and participation in our 

discretionary grant programs is 

completely voluntary, we do not think 

that it would be appropriate to 

characterize any increased participation 

in our grant competitions as costs 

associated with this regulation. 

Proposed changes to § 75.226, which 

would provide the Secretary with the 

authority to give special consideration 

to an application that demonstrates a 

rationale, are unlikely to generate any 

quantifiable costs or benefits. Many 

grant competitions already ask 

applicants to discuss the extent to 

which they can demonstrate a rationale 

for their proposed projects through a 

selection factor and, to the extent that it 

is included in additional competitions 

in the future, we do not believe that it 

would create a substantial burden for 

applicants, because we assume that 

applicants in those programs would 

likely already have conceptualized an 

implicit logic model for their 

applications and would, therefore, 

experience only minimal paperwork 

burden associated with memorializing it 

in their applications. 

Proposed changes to § 75.227 would 

give the Secretary the authority to give 

special consideration to rural 

applicants. The proposed language in 

this section mirrors language adopted by 

the Department in the Administrative 

Priorities. As such, these proposed 

changes will not generate any 

quantifiable costs and may benefit the 

Department and general public by 

improving the clarity and transparency 

of the Department’s authority to provide 

special consideration to particular 

applicants. 

Proposed changes to § 75.234, which 

would replace the word ‘‘special’’ with 

the word ‘‘specific,’’ are unlikely to 

generate any quantifiable costs and may 

benefit the Department and general 

public by improving the clarity of the 

regulations. 

Proposed changes to § 75.250, which 

would update the heading and would 

clarify that an extension of the project 

period is authorized by EDGAR only if 

the applicable statutes and regulations 

permit it, are unlikely to generate any 

quantifiable costs and may benefit the 

Department and general public by 

improving the clarity of the regulations. 

Proposed changes to § 75.253, which 

would allow a grantee whose request for 

a non-competitive continuation award 

has been denied to request 

reconsideration, could generate costs to 

affected grantees and the Department. In 

general, we do not deny a large number 

of non-competing continuation awards 

and, if that does happen, grantees are 

often aware of the likelihood of the 

decision well in advance and often cite 

no concerns if they do not receive a 

continuation award. Therefore, we do 

not believe that many grantees would 

qualify for the redress, and we do not 

believe that the few who may qualify 

would exercise the right. However, for 

the purpose of this analysis, we assume 

that we would process 10 such requests 

annually—which we believe is an 

overestimate of the likely incidence. For 

each request, we assume a project 

director earning $106.76 per hour, on 

average, would spend 24 hours drafting 

and submitting the request. At the 

Department, a program officer at the 

GS–13/1 level ($61.96 per hour) would 

spend approximately 8 hours reviewing 

each request, along with 2 hours for 

their supervisor at the GS–14/1 level 

($72.69 per hour) to review. We also 

assume that a Department attorney 

($72.69 per hour) would spend 

approximately 4 hours reviewing each 

request. In sum, we estimate that this 

provision would generate an additional 

cost of approximately $25,622 for 

grantees and $9,320 for the Department 

per year. 

The proposed addition of a new 

§ 75.254 would give the Secretary the 

authority to approve data collection 

periods. The proposed language in this 

section is aligned with this previous 

authority under § 75.250(b) as well the 

Administrative Priorities. As such, these 

proposed changes will not generate any 

quantifiable costs and may benefit the 

Department and general public by 

allowing for data collection periods that 

give grantees additional time to 

collection data to measure project 

impact. 

Proposed changes to § 75.261, which 

would remove references to obsolete 

programs and make other edits, are 

unlikely to generate any quantifiable 

costs and may benefit the Department 

and general public by improving the 

clarity of the regulations. 

Proposed changes to § 75.263, which 

would remove the clause 

‘‘notwithstanding any requirement in 2 

CFR part 200,’’ are unlikely to generate 

any quantifiable costs and may benefit 

the Department and general public by 

improving the clarity of the regulations. 

Proposed changes to §§ 75.560– 

75.564, which align these sections with 

the Uniform Guidance and provide 

additional information on the 

application of indirect cost rates, are 

unlikely to generate any quantifiable 

costs and may benefit the Department 

and general public by improving the 

clarity of the regulations. 

Proposed changes to § 75.590, which 

would allow the Department to require 

the use of an independent evaluation in 

a program, would likely generate 

transfers for affected grantees. 

Specifically, we assume that grantees 

that are required to use an independent 

evaluator will transfer grant funds from 

their currently designated purpose (such 

as to defray the costs of an internal 

evaluation) to pay for an independent 

evaluation. We note, however, that we 

do not believe that these transfers would 

substantially affect the level of support 

that beneficiaries of our competitive 

grant programs receive; the grantees 

would have spent a certain percentage 

of their awards on evaluation, whether 

such evaluation is conducted by an 

internal or external entity. We believe 

that the most likely programs in which 

the Department would require an 

independent evaluation are those that 

include an expectation of a rigorous 

evaluation using selection factors 

related to What Works Clearinghouse 

evidence standards in project 

evaluations. From 2014 through 2022, 

we included such selection factors in 18 

competitions (excluding programs that 

have their own independent evaluation 

requirements, such as Education 

Innovation and Research and its 

predecessor, Investing in Innovation, 

because these programs are already 

included in the baseline), with a 

combined average of $194.8 million in 

awards per year. Assuming that 

evaluation costs in these programs 

average approximately 15 percent of 

total project costs, we estimate that the 

evaluations for these competitions 

would cost approximately $29,227,000 


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per year. Assuming equal-sized cohorts 

of new grants per year, we estimate that 

this total would increase through Year 

5, when it would plateau at 

$146,135,000 per year. To the extent 

that grantees already use evaluators that 

would meet the requirements for an 

independent evaluation, this would 

represent an overestimate of the 

transfers associated with this provision. 

Proposed changes to § 75.591, which 

clarify how grantees cooperate with 

Federal research activities, are unlikely 

to generate any quantifiable costs and 

may benefit the Department and general 

public by improving the clarity of the 

regulations. 

Proposed changes to §§ 75.600–75.615 

and §§ 75.618–75.619 would restructure 

the sections on construction to improve 

the flow of the information, as well as 

update citations, are unlikely to 

generate any quantifiable costs and may 

benefit the Department and general 

public by improving the clarity of the 

regulations. 

Proposed changes to § 75.620, which 

would update language regarding 

Federal endorsement, are unlikely to 

generate any quantifiable costs and may 

benefit the Department and general 

public by improving the clarity of the 

regulations. 

The proposed addition of § 75.623 

would require certain grantees to submit 

final versions of Department-funded 

research publications to ERIC so that 

they are publicly available. Given that 

submission of the files would be a 

required grant activity, we do not 

anticipate that the requirement 

generating any additional costs for 

grantees. To the extent that submission 

did generate additional burdens, they 

would likely be minimal and would be 

properly considered transfers from 

support of other grant-related activities. 

Such transfers would be de minimis. 

Further, the addition of this requirement 

would generate benefits for the general 

public by increasing the availability of 

publicly supported research. 

Proposed changes to § 75.700, which 

would add Executive orders to the list 

of authorities with which grantees must 

comply, are unlikely to generate any 

quantifiable costs and may benefit the 

Department and general public by 

improving the clarity of the regulations. 

Proposed changes to § 75.708, which 

would allow the Secretary to provide 

notice authorizing subgrants through the 

Federal Register or another reasonable 

means, may generate minimal efficiency 

returns to the Department by reducing 

burdens and costs associated with 

preparing a notice for publication in the 

Federal Register. However, we estimate 

that staff time to draft and compile these 

notices will likely remain unchanged 

and, therefore, do not estimate any 

changes in burden associated with this 

provision. 

Proposed changes to § 75.720 would 

allow the Secretary to require grantees 

to publish their annual performance 

reports on a public-facing website. 

Given that this requirement would 

apply only to a subset of discretionary 

competitive grant programs and 

participation in such programs is 

voluntary, we do not estimate any costs 

associated with this proposed change. 

However, we believe that, to the extent 

that the requirement results in a shift in 

activities by grantees, it is possible that 

there would be minimal transfers. We 

estimate that it would take a web 

developer approximately 30 minutes to 

post a copy of the grantee’s annual 

performance report on the website. 

Assuming that a loaded wage rate is 

$57.05 per hour for web developers, we 

estimate that this requirement could 

generate approximately $29 per year per 

affected grantee. In FY 2020, the 

Department made approximately 7,700 

grants. Assuming this requirement 

would be used in 20 percent of those 

grants, we estimate total transfers of 

approximately $43,930 per year. 

Proposed changes to § 76.1, which 

would ensure consistent reference to 

State-administered formula grant 

programs, are unlikely to generate any 

quantifiable costs and may benefit the 

Department and general public by 

improving the clarity of the regulations. 

Proposed changes to § 76.50 would 

clarify that, in the absence of a statutory 

or regulatory prohibition against 

subgranting, or in the absence of a term 

and condition in the grant award that 

would prohibit subgranting, States, 

consistent with 2 CFR 200.332, 

determine whether to make subgrants. 

These proposed changes would likely 

generate cost savings for States 

associated with the reduced burden 

associated with making subgrants as 

opposed to contracts. However, we do 

not have sufficient information to 

quantify this impact and we invite 

public comment on the cost savings 

associated with such a shift at the State 

level. 

Proposed changes to § 76.101, which 

would clarify the applicability of 

section 441 of GEPA, are unlikely to 

generate any quantifiable costs and may 

benefit the Department and general 

public by improving the clarity of the 

regulations. 

Proposed changes to § 76.102, which 

would remove a table and provide a 

general definition of the term ‘‘State 

plan,’’ are unlikely to generate any 

quantifiable costs and may benefit the 

Department and general public by 

improving the clarity of the regulations. 

Proposed changes to § 76.103, which 

would remove extraneous text and 

simplify the section, are unlikely to 

generate any quantifiable costs and may 

benefit the Department and general 

public by improving the clarity of the 

regulations. 

Proposed changes to §§ 76.125– 

76.137, which would remove references 

to the Trust Territory of the Pacific 

Islands and make other changes, are 

unlikely to generate any quantifiable 

costs and may benefit the Department 

and general public by improving the 

clarity of the regulations. 

Proposed changes to §§ 76.140– 

76.142, which would, among other 

things, allow the Secretary to prescribe 

alternative amendment processes on a 

program-by-program basis, could 

generate benefits for both States and the 

Department. The proposed changes 

would provide the Secretary broad 

flexibility in prescribing alternative 

procedures, which makes it difficult to 

assess precisely the specific cost 

reductions that would occur. However, 

we assume that these alternative 

procedures would result in a net burden 

reduction of 2 hours for a management 

analyst at the State level and 0.5 hours 

for an administrator at the State level for 

each State plan revision under the 

ESEA. We further estimate that likely 

alternative procedures would result in a 

burden reduction of 5 hours for a 

management analyst and 0.5 hours for a 

chief executive at the State level for 

each State plan revision under the 

Workforce Innovation and Opportunity 

Act (WIOA). We further assume an 

average of 15 State plan amendments 

under the ESEA and 52 State plan 

amendments under WIOA each year. In 

total, we estimate that these alternative 

procedures would reduce costs for 

States by approximately $23,733 per 

year. We also assume that the 

alternative procedures would reduce 

burden on Federal staff by 

approximately 1 hour per State plan 

amendment for a total Federal savings of 

approximately $4,150 per year. 

Proposed changes to § 76.301, which 

would clarify that section 442 of GEPA 

does not apply to LEA subgrantees, 

would not generate any quantifiable 

costs, and would benefit the Department 

and the general public by improving the 

clarity of the regulations. 

Proposed changes to § 76.401, which 

would clarify that a notice of appeal 

must include an allegation of a specific 

violation of law by the SEA, are likely 

to generate benefits for the Department 

by reducing the number of appeals that 

fail to state a claim that we receive and 


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process each year. On average, we 

process approximately 10 appeals each 

year, with an attorney spending 

approximately 30 hours reviewing each 

appeal. We estimate that this provision 

would reduce the number of appeals the 

Department receives each year by 

approximately 20 percent, resulting in a 

net savings of 60 hours per year or 

approximately $5,530 per year. We also 

believe that this provision would 

generate cost savings at the State level, 

but do not have sufficient information 

on the case load at the State level to 

make a reliable estimate. We invite 

public comment on the potential 

savings at the State level associated with 

this proposed change. 

Proposed changes to §§ 76.560– 

76.569, which would align these 

sections with the Uniform Guidance and 

provide additional information on the 

application of indirect cost rates, are 

unlikely to generate any quantifiable 

costs and may benefit the Department 

and general public by improving the 

clarity of the regulations. 

Proposed changes to § 76.650 and 

related sections, which would revise 

regulatory references, are unlikely to 

generate any quantifiable costs and may 

benefit the Department and general 

public by improving the clarity of the 

regulations. 

The proposed deletion of § 76.655 as 

unnecessary is unlikely to generate any 

quantifiable cost and may benefit the 

Department and general public by 

improving the clarity of the regulations. 

Proposed changes to § 76.783 indicate 

that a subgrantee may request a hearing 

related to a State educational agency’s 

failure to provide funds in amounts in 

accordance with the requirements of 

applicable statutes and regulations. 

These proposed changes would not 

generate any additional costs, as this 

circumstance was previously 

contemplated in § 76.401, which we are 

proposing to delete. 

Proposed changes to § 77.1(c), which 

would update existing definitions, 

remove unnecessary definitions, and 

add new definitions, are unlikely to 

generate any quantifiable costs and may 

benefit the Department and general 

public by improving the clarity of the 

regulations. 

Proposed changes to part 79, which 

would remove outdated statutory 

references, are unlikely to generate any 

quantifiable costs and may benefit the 

Department and general public by 

improving the clarity of the regulations. 

Proposed changes to part 299, which 

would reflect statutory changes, are 

unlikely to generate any quantifiable 

costs and may benefit the Department 

and the general public by improving the 

clarity of the regulations. The proposed 

additions of §§ 299.16–299.17 would 

add specificity as to what an SEA’s 

resolution of a complaint must include 

and what a party’s appeal to the 

Secretary of an SEA decision must 

include. The specific elements named in 

these sections are all things that a legal 

decision or appeal should already 

include (such as a description of 

applicable statutory and regulatory 

requirements, legal analysis and 

conclusions, supporting 

documentation). When the Department 

receives records on appeal that do not 

include one or more of these elements, 

we go back to the parties to request the 

missing element(s). Specifying in these 

sections what we need to issue a 

decision would prevent this 

unnecessary delay; however, we do not 

think that the specific elements would 

generate quantifiable costs. 

Proposed additions of §§ 299.18– 

299.28 regarding the procedures for a 

bypass in providing equitable services 

to eligible private school children, 

teachers or other educational personnel, 

and families, as applicable, are unlikely 

to generate any quantifiable costs and 

may benefit the Department and the 

general public by improving the clarity 

of the regulations. These sections reflect 

only minor updates to information 

previously contained in §§ 76.670– 

76.677, which elsewhere we propose to 

remove. 

In total, we estimate that these 

regulations would result in a net 

decrease in costs of approximately 

$4,014 per year with transfers ranging 

from $109.7 million to $113.8 million 

per year. Of the net benefit, 

approximately $3,610 would accrue to 

grantees. The remaining approximately 

$400 in net additional benefits would 

accrue to the Department. 

As noted above, we do not anticipate 

any meaningful, quantifiable impact 

from the majority of proposed regulatory 

changes. However, for those provisions 

for which we do estimate impacts, we 

summarize those impacts below using 3 

and 7 percent discount rates, consistent 

with OMB Circular A–4: 

Provision 3% discount 

rate 

7% discount 

rate 

Benefits 

§ 75.109—Reduce the number of paper copies of an application to be submitted ................................................ $375 $375 

§ 76.140–142—Amendments to State Plan ............................................................................................................ 34,940 34,940 

§ 76.401—Disapproval of an application ................................................................................................................. 10,655 10,655 

Costs 

§ 75.253—Request for Reconsideration .................................................................................................................. ($27,924) ($27,924) 

Transfers 

§ 75.590—Independent evaluation .......................................................................................................................... $113,824,837 $109,706,758 

§ 75.720—Financial and Performance Reports ....................................................................................................... $43,500 $43,500 

Clarity of the Regulations 

Executive Order 12866 and the 

Presidential memorandum ‘‘Plain 

Language in Government Writing’’ 

require each agency to write regulations 

that are easy to understand. 

The Secretary invites comments on 

how to make these proposed regulations 

easier to understand, including answers 

to questions such as the following: 

• Are the requirements in the 

proposed regulations clearly stated? 

• Do the proposed regulations contain 

technical terms or other wording that 

interferes with their clarity? 

• Does the format of the proposed 

regulations (grouping and order of 

sections, use of headings, paragraphing, 

etc.) aid or reduce their clarity? 

• Would the proposed regulations be 

easier to understand if we divided them 

into more (but shorter) sections? 

• Could the description of the 

proposed regulations in the 

SUPPLEMENTARY INFORMATION section of 


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this preamble be more helpful in 

making the proposed regulations easier 

to understand? If so, how? 

• What else could we do to make the 

proposed regulations easier to 

understand? 

To send any comments that concern 

how the Department could make the 

proposed regulations easier to 

understand, see the instructions in the 

ADDRESSES section. 

Regulatory Flexibility Act Certification 

The Secretary certifies that this 

proposed regulatory action would not 

have a significant economic impact on 

a substantial number of small entities. 

The U.S. Small Business Administration 

Size Standards define proprietary 

institutions as small businesses if they 

are independently owned and operated, 

are not dominant in their field of 

operation, and have total annual 

revenue below $7,000,000. Nonprofit 

institutions are defined as small entities 

if they are independently owned and 

operated and not dominant in their field 

of operation. Public institutions are 

defined as small organizations if they 

are operated by a government 

overseeing a population below 50,000. 

Of the impacts we estimate accruing 

to grantees or eligible entities, all are 

voluntary and related mostly to an 

increase in the number of applications 

prepared and submitted annually for 

competitive grant competitions. 

Therefore, we do not believe that these 

regulations present any significant 

impact on small entities beyond the 

potential for increasing the likelihood of 

their applying for, and receiving, 

competitive grants from the Department. 

Paperwork Reduction Act 

The proposed regulatory action does 

not contain any information collection 

requirements. However, we do 

anticipate that the proposed changes to 

§§ 76.140–76.142 would reduce State 

burden under existing information 

collection requirements by 

approximately 323.5 hours per year (see 

the Discussion of Costs, Benefits, and 

Transfers for more information on this 

estimate). The valid OMB control 

number for that information collection 

is 1810–0576. 

Intergovernmental Review 

These programs are subject to 

Executive Order 12372 and the 

regulations in 34 CFR part 79. One of 

the objectives of the Executive order is 

to foster an intergovernmental 

partnership and a strengthened 

federalism. The Executive order relies 

on processes developed by State and 

local governments for coordination and 

review of proposed Federal financial 

assistance. 

This document provides early 

notification of our specific plans and 

actions for these programs. 

Accessible Format: On request to the 

program contact person listed under FOR

FURTHER INFORMATION CONTACT, 

individuals with disabilities can obtain 

this document in an accessible format. 

The Department will provide the 

requestor with an accessible format that 

may include Rich Text Format (RTF) or 

text format (txt), a thumb drive, an MP3 

file, braille, large print, audiotape, or 

compact disc, or other accessible format. 

Electronic Access to This Document: 

The official version of this document is 

the document published in the Federal 

Register. You may access the official 

edition of the Federal Register and the 

Code of Federal Regulations at 

www.govinfo.gov. At this site you can 

view this document, as well as all other 

documents of this Department 

published in the Federal Register, in 

text or Portable Document Format 

(PDF). To use PDF you must have 

Adobe Acrobat Reader, which is 

available free at the site. 

You may also access documents of the 

Department published in the Federal 

Register by using the article search 

feature at www.federalregister.gov. 

Specifically, through the advanced 

search feature at this site, you can limit 

your search to documents published by 

the Department. 

List of Subjects 

34 CFR Part 75 

Accounting; Copyright; Education; 

Grant programs—education; 

Incorporation by reference; Indemnity 

payments; Inventions and patents; 

Private schools; Reporting and 

recordkeeping requirements; Youth 

organizations. 

34 CFR Part 76 

Accounting; Administrative practice 

and procedure; American Samoa; 

Education; Grant programs—education; 

Guam; Northern Mariana Islands; 

Pacific Islands Trust Territory; Prisons; 

Private schools; Reporting and 

recordkeeping requirements; Virgin 

Islands; Youth organizations. 

34 CFR Part 77 

Education; Grant programs— 

education; Incorporation by reference. 

34 CFR Part 79 

Intergovernmental relations. 

34 CFR Part 299 

Administrative practice and 

procedure; Elementary and secondary 

education; Grant programs—education; 

Private schools; Reporting and 

recordkeeping requirements. 

Miguel A. Cardona, 

Secretary of Education. 

For the reasons discussed in the 

preamble, the Secretary proposes to 

amend parts 75, 76, 77, 79, and 299 of 

title 34 of the Code of Federal 

Regulations as follows: 

PART 75—DIRECT GRANT 

PROGRAMS 

■ 1. The authority citation for part 75 is 

revised to read as follows: 

Authority: 20 U.S.C. 1221e–3 and 3474, 

unless otherwise noted. 

Section 75.263; 2 CFR 200.308(d)(1). 

Section 75.617, 31 U.S.C. 3504, 3505. 

Section 75.740 also issued under 20 U.S.C. 

1232g and 1232h. 

■ 2. Revise § 75.1 to read as follows: 

§ 75.1 Programs to which part 75 applies. 

(a) General. (1) The regulations in this 

part apply to each direct grant program 

of the Department of Education, except 

as specified in these regulations for 

direct formula grant programs, as 

referenced in paragraph (c)(3) of this 

section. 

(2) The Department administers two 

kinds of direct grant programs. A direct 

grant program is either a discretionary 

grant program or a formula grant 

program other than a State-administered 

formula grant program covered by 34 

CFR part 76. 

(3) If a direct grant program does not 

have implementing regulations, the 

Secretary implements the program 

under the applicable statutes and 

regulations and, to the extent consistent 

with the applicable statutes and 

regulations, under the General 

Education Provisions Act and the 

regulations in this part. With respect to 

the Impact Aid Program (Title VII of the 

Elementary and Secondary Education 

Act of 1965), see 34 CFR 222.19 for the 

limited applicable regulations in this 

part. 

(b) Discretionary grant programs. A 

discretionary grant program is one that 

permits the Secretary to use 

discretionary judgment in selecting 

applications for funding. 

(c) Formula grant programs. (1) A 

formula grant program is one that 

entitles certain applicants to receive 

grants if they meet the requirements of 

the program. Applicants do not compete 

with each other for the funds, and each 

grant is either for a set amount or for an 

amount determined under a formula. 

(2) The Secretary applies the 

applicable statutes and regulations to 


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fund projects under a formula grant 

program. 

(3) For specific regulations in this part 

that apply to the selection procedures 

and grant-making processes for direct 

formula grant programs, see §§ 75.215 

and 75.230. 

Note 1 to § 75.1: See 34 CFR part 76 for the 

general regulations that apply to programs 

that allocate funds by formula among eligible 

States. 

§ 75.4 [Removed and Reserved] 

■ 3. Remove and reserve § 75.4. 

§ 75.50 [Amended] 

■ 4. Amend § 75.50 in paragraph (a) by 

removing the words ‘‘the authorizing 

statute’’ and adding in their place the 

words ‘‘applicable statutes and 

regulations’’. 

§ 75.51 [Amended] 

■ 5. Amend § 75.51 in paragraph (a) by 

removing the parenthetical sentence 

‘‘(See the definition of nonprofit in 34 

CFR 77.1.)’’. 

■ 6. Revise § 75.60 to read as follows: 

§ 75.60 Individuals ineligible to receive 

assistance. 

An individual is ineligible to receive 

a fellowship, scholarship, or 

discretionary grant funded by the 

Department if the individual— 

(a) Is not current in repaying a debt 

or is in default, as that term is used in 

34 CFR part 668, on a debt— 

(1) Under a program administered by 

the Department under which an 

individual received a fellowship, 

scholarship, or loan that they are 

obligated to repay; or 

(2) To the Federal Government under 

a nonprocurement transaction; and 

(b) Has not made satisfactory 

arrangements to repay the debt. 

§ 75.61 [Amended] 

■ 7. Amend section 75.61 by: 

■ a. In paragraph (a)(2), removing the 

words ‘‘section 5301 of the Anti-Drug 

Abuse Act of 1988 (21 U.S.C. 853a)’’ and 

adding in their place the words ‘‘section 

421 of the Controlled Substances Act 

(21 U.S.C. 862)’’; and 

■ b. Removing the parenthetical 

authority citation at the end of the 

section. 

§ 75.62 [Amended] 

■ 8. Amend § 75.62 by: 

■ a. In paragraph (a)(2), removing the 

words ‘‘section 5301 of the Anti-Drug 

Abuse Act of 1988 (21 U.S.C. 853a)’’ and 

adding, in their place, the words 

‘‘section 421 of the Controlled 

Substances Act (21 U.S.C. 862)’’; and 

■ b. Removing the parenthetical 

authority citation at the end of the 

section. 

■ 9. Amend § 75.101 by: 

■ a. Revising paragraph (a)(1); 

■ b. Adding the period after 

‘‘assistance?)’’ in paragraph (a)(7); 

■ c. Removing paragraphs (a)(1)(i) and 

(ii); and 

■ d. Removing the parenthetical 

authority citation at the end of the 

section. 

The revision reads as follows: 

§ 75.101 Information in the application 

notice that helps an applicant apply. 

(a) * * * 

(1) How an applicant can obtain an 

application package. 

* * * * * 

§ 75.102 [Amended] 

■ 10. Amend § 75.102 by removing and 

reserving paragraph (b) and removing 

the parenthetical authority citation at 

the end of the section. 

§ 75.103 [Amended] 

■ 11. Amend § 75.103 by: 

■ a. Removing in paragraph (b) the 

citation ‘‘§ 75.102(b) and (d)’’ and 

adding in its place the citation 

‘‘§ 75.102(d)’’; and 

■ b. Removing the parenthetical 

authority citation at the end of the 

section. 

■ 12. Amend § 75.104 by: 

■ a. Revising the section heading; 

■ b. Adding paragraph (c); and 

■ c. Removing the parenthetical 

authority citation at the end of the 

section. 

The revision and addition read as 

follows. 

§ 75.104 Additional application provisions. 

* * * * * 

(c) If an applicant wants a new grant, 

the applicant must submit an 

application in accordance with the 

requirements in the application notice. 

■ 13. Amend § 75.105 by: 

■ a. Revising the section heading; 

■ b. In paragraph (b)(2)(i), removing the 

words ‘‘by inviting applications that 

meet the priorities’’ and adding in their 

place the words ‘‘through invitational 

priorities’’; 

■ c. In paragraph (b)(2)(iii), removing 

the words ‘‘seriously interfere with an 

orderly, responsible grant award process 

or would otherwise’’; 

■ d. In paragraph (b)(2)(iv), removing 

the word ‘‘or’’ after the semicolon; 

■ e. In paragraph (b)(2)(v), removing the 

period and adding in its place ‘‘; or’’; 

■ f. Adding paragraph (b)(2)(vi); 

■ g. Removing the words ‘‘high quality’’ 

in paragraph (c)(3) and adding in their 

place the words ‘‘high-quality’’; and 

■ h. Removing the parenthetical 

authority citation at the end of the 

section. 

The revision and addition read as 

follows: 

§ 75.105 Annual absolute, competitive 

preference, and invitational priorities. 

* * * * * 

(b) * * * 

(2) * * * 

(vi) The final annual priorities are 

developed under the exemption from 

rulemaking for the first grant 

competition under a new or 

substantially revised program authority 

pursuant to section 437(d)(1) of GEPA, 

20 U.S.C. 1232(d)(1), or an exemption 

from rulemaking under section 681(d) of 

the Individuals with Disabilities 

Education Act, 20 U.S.C. 1481(d), 

section 191 of the Education Sciences 

Reform Act, 20 U.S.C. 9581, or any other 

applicable exemption from rulemaking. 

* * * * * 

■ 14. Revise § 75.109 to read as follows: 

§ 75.109 Changes to applications. 

An applicant may make changes to its 

application on or before the deadline 

date for submitting the application 

under the program. 

■ 15. Amend § 75.110 by: 

■ a. Revising paragraph (a); 

■ b. Redesignating paragraphs (b) and 

(c) as paragraphs (c) and (b), 

respectively; 

■ c. In newly redesignated paragraph (b) 

introductory text, adding the word 

‘‘program’’ before the words 

‘‘performance measurement’’; 

■ d. Revising newly redesignated 

paragraphs (b)(1)(ii) and (b)(2); 

■ e. Revising newly redesignated 

paragraphs (c)(1) and (c)(2)(i); and 

■ f. Removing the parenthetical 

authority citation at the end of the 

section. 

The revisions read as follows: 

§ 75.110 Information regarding 

performance measurement. 

(a) The Secretary may establish, in an 

application notice for a competition, 

one or more program performance 

measurement requirements, including 

requirements for performance measures, 

baseline data, or performance targets, 

and a requirement that applicants 

propose in their applications one or 

more of their own project-specific 

performance measures, baseline data, or 

performance targets and ensure that the 

applicant’s project-specific performance 

measurement plan would, if well 

implemented, yield quality data. 

(b) * * * 

(1) * * * 

(ii) If the Secretary requires applicants 

to collect data after the substantive work 


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of a project is complete in order to 

measure progress toward attaining 

certain performance targets, the datacollection and reporting methods the 

applicant would use during the postperformance period and why those 

methods are likely to yield quality data. 

(2) The applicant’s capacity to collect 

and report the quality of the 

performance data, as evidenced by 

quality data collection, analysis, and 

reporting in other projects or research. 

(c) * * * 

(1) Project-specific performance 

measures. How each proposed projectspecific performance measure would: 

accurately measure the performance of 

the project; be consistent with the 

program performance measures 

established under paragraph (a) of this 

section; and be used to inform 

continuous improvement of the project. 

(2) * * * 

(i) Why each proposed baseline is 

valid and reliable, including an 

assessment of the quality data used to 

establish the baseline; or 

* * * * * 

■ 16. Amend § 75.112 by: 

■ a. Revising the section heading; 

■ b. Adding paragraph (c); and 

■ c. Removing the parenthetical 

authority citation at the end of the 

section. 

The revision and addition read as 

follows: 

§ 75.112 Include a proposed project 

period, a timeline, and a logic model. 

* * * * * 

(c) The Secretary may establish, in an 

application notice, a requirement to 

include a logic model. 

§ 75.117 [Amended] 

■ 17. Amend § 75.117 in paragraph (a) 

by adding ‘‘and’’ after the semicolon. 

§ 75.118 [Amended] 

■ 18. Amend § 75.118 by: 

■ a. In paragraph (a), removing ‘‘2 CFR 

200.327 and 200.328’’ and adding in its 

place ‘‘2 CFR 200.328 and 200.329’’; and 

■ b. Removing the parenthetical 

authority citation at the end of the 

section. 

■ 19. Revise § 75.119 to read as follows: 

§ 75.119 Information needed if private 

school children participate. 

If a program provides for participation 

of students enrolled in private schools 

and, as applicable, their teachers or 

other educational personnel, and their 

families, the application must include a 

description of how the applicant will 

meet the requirements under §§ 299.7– 

299.11. 

■ 20. Amend § 75.127 by: 

■ a. Redesignating paragraphs (b)(3) and 

(4) as paragraphs (b)(4) and (5), 

respectively; 

■ b. Adding new paragraph (b)(3) and 

paragraph (c); and 

■ c. Removing the parenthetical 

authority citation at the end of the 

section. 

The additions read as follows: 

§ 75.127 Eligible parties may apply as a 

group. 

* * * * * 

(b) * * * 

(3) Partnership. 

* * * * * 

(c) In the case of a group application 

submitted in accordance with §§ 75.127 

through 75.129, all parties in the group 

must be eligible applicants under the 

competition. 

§ 75.135 [Amended] 

■ 21. Amend § 75.135 by: 

■ a. In paragraph (a) introductory text, 

removing the citation ‘‘2 CFR 200.320(c) 

and (d)’’ and adding in its place the 

citation ‘‘2 CFR 200.320(b)’’; and 

■ b. In paragraph (b) introductory text, 

removing the citation ‘‘2 CFR 

200.320(b)’’ and adding in its place the 

citation ‘‘2 CFR 200.320(a)’’. 

§ 75.155 [Amended] 

■ 22. Amend § 75.155 by removing the 

words ‘‘the authorizing statue requires’’ 

and adding in their place the words 

‘‘applicable statutes and regulations 

require’’. 

§ 75.157 [Amended] 

■ 23. Amend § 75.157 by removing the 

parenthetical authority citation at the 

end of the section. 

§ 75.158 [Amended] 

■ 24. Amend § 75.158 by: 

■ a. In paragraph (c), removing the 

citation ‘‘§ 75.102(b) and (d)’’ and 

adding in its place the citation 

‘‘§ 75.102(d)’’; and 

■ b. Removing the parenthetical 

authority citation at the end of the 

section. 

§ § 75.190 through 75.192 [Removed and 

Reserved] 

■ 25. Remove the undesignated section 

heading before § 75.190, and remove 

and reserve §§ 75.190 through 75.192. 

■ 26–27. Revise the undesignated center 

heading before § 75.200 and revise 

§ 75.200 to read as follows: 

Selection of New Discretionary Grant 

Projects 

§ 75.200 How applications for new 

discretionary grants and cooperative 

agreements are selected for funding; 

standards for use of cooperative 

agreements. 

(a) The Secretary uses selection 

criteria to evaluate the applications 

submitted for new grants under a 

discretionary grant program. 

(b) To evaluate the applications for 

new grants under the program, the 

Secretary may use— 

(1) Selection criteria established 

under § 75.209; 

(2) Selection criteria in § 75.210; or 

(3) Any combination of criteria from 

paragraphs (b)(1) and (b)(2) of this 

section. 

(c)(1) The Secretary may award a 

cooperative agreement instead of a grant 

if the Secretary determines that 

substantial involvement between the 

Department and the recipient is 

necessary to carry out a collaborative 

project. 

(2) The Secretary uses the selection 

procedures in this subpart to select 

recipients of cooperative agreements. 

§ 75.201 [Amended] 

■ 28. Amend § 75.201 by: 

■ a. In paragraph (b), adding the words 

‘‘or factors’’ after the words ‘‘selection 

criteria’’; 

■ b. In paragraph (c), removing the word 

‘‘and’’ between the words ‘‘selection 

criteria’’ and ‘‘selected factors’’ and 

adding in its place the word ‘‘or’’; and 

■ c. Removing the parenthetical 

authority citation at the end of the 

section. 

§ 75.209 [Amended] 

■ 29. Amend § 75.209 by: 

■ a. In the introductory text, adding a 

comma immediately after ‘‘limited to’’; 

and 

■ b. In paragraph (c), removing the 

words ‘‘the program statute or 

regulations’’ and adding in their place 

the words ‘‘applicable statutes and 

regulations’’. 

■ 30. Revise § 75.210 to read as follows: 

§ 75.210 General selection criteria. 

In determining the selection criteria to 

evaluate applications submitted in a 

grant competition, the Secretary may 

select one or more of the following 

criteria and may select from among the 

list of optional factors under each 

criterion. The Secretary may define a 

selection criterion by selecting one or 

more specific factors within a criterion 

or assigning factors from one criterion to 

another criterion. 


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(a) Need for the project. (1) The 

Secretary considers the need for the 

proposed project. 

(2) In determining the need for the 

proposed project, the Secretary 

considers one or more of the following 

factors: 

(i) The data presented (including a 

comparison to local, State, regional, 

national, or international data) that 

demonstrates the issue, challenge, or 

opportunity to be addressed by the 

proposed project. 

(ii) The extent to which the proposed 

project demonstrates the magnitude of 

the need for the services to be provided 

or the activities to be carried out by the 

proposed project. 

(iii) The extent to which the proposed 

project will provide support, resources, 

or services; close gaps in educational 

opportunity; or otherwise address the 

needs of the targeted population, 

including addressing the needs of 

underserved populations most affected 

by the issue, challenge, or opportunity 

to be addressed by the proposed project. 

(iv) The extent to which the proposed 

project will focus on serving or 

otherwise addressing the needs of 

underserved populations. 

(v) The extent to which the specific 

nature and magnitude of gaps or 

challenges are identified and the extent 

to which these gaps or challenges will 

be addressed by the services, supports, 

infrastructure, or opportunities 

described in the proposed project. 

(vi) The extent to which the proposed 

project will prepare individuals from 

underserved populations for 

employment in fields and careers in 

which there are demonstrated shortages. 

(b) Significance. (1) The Secretary 

considers the significance of the 

proposed project. 

(2) In determining the significance of 

the proposed project, the Secretary 

considers one or more of the following 

factors: 

(i) The extent to which the proposed 

project is relevant at the national level. 

(ii) The significance of the problem or 

issue as it affects educational access and 

opportunity, including the underlying 

or related challenges for underserved 

populations. 

(iii) The extent to which findings from 

the project’s implementation will 

contribute new knowledge to the field 

by increasing knowledge or 

understanding of, including the 

underlying or related challenges, 

effective strategies for addressing 

educational challenges and their 

effective implementation. 

(iv) The potential contribution of the 

proposed project to improve the 

provision of rehabilitative services, 

increase the number or quality of 

rehabilitation counselors, or develop 

and implement effective strategies for 

providing vocational rehabilitation 

services to individuals with disabilities. 

(v) The likelihood that the proposed 

project will result in systemic change 

that supports continuous and 

sustainable improvement. 

(vi) The potential contribution of the 

proposed project to the development 

and advancement of theory, knowledge, 

and practices in the field of study, 

including the extent to which the 

contributions may be used by other 

appropriate agencies, organizations, or 

institutions. 

(vii) The potential for generalizing 

from the findings or results of the 

proposed project. 

(viii) The extent to which the 

proposed project is likely to build local, 

State, or national capacity to provide, 

improve, sustain, or expand training or 

services that address the needs of 

underserved populations. 

(ix) The extent to which the proposed 

project involves the development or 

demonstration of innovative and 

effective strategies that build on, or are 

alternatives to, existing strategies. 

(x) The extent to which the proposed 

project is innovative and likely to be 

effective compared to other efforts to 

address a similar problem. 

(xi) The likely utility of the resources 

(such as materials, processes, or 

techniques) that will result from the 

proposed project, including the 

potential for effective use in a variety of 

conditions, populations, or settings. 

(xii) The extent to which the 

resources, tools, and implementation 

lessons of the proposed project will be 

disseminated in ways to the targeted 

population and local community that 

will enable them and others (including 

practitioners, researchers, education 

leaders, and partners) to implement 

similar strategies. 

(xiii) The potential effective 

replicability of the proposed project or 

strategies, including, as appropriate, the 

potential for implementation by a 

variety of populations or settings. 

(xiv) The importance or magnitude of 

the results or outcomes likely to be 

attained by the proposed project, 

especially contributions toward 

improving teaching practice and student 

learning and achievement. 

(xv) The importance or magnitude of 

the results or outcomes likely to be 

attained by the proposed project, 

especially improvements in 

employment, independent living 

services, or both, as appropriate. 

(xvi) The importance or magnitude of 

the results or outcomes likely to be 

attained by the proposed project that 

demonstrate the impact of the proposed 

project for the targeted underserved 

populations in terms of breadth and 

depth of services. 

(xvii) The extent to which the 

proposed project introduces an 

innovative approach, such as a 

modification of an evidence-based 

project component to serve different 

populations, an extension of an existing 

evidence-based project component, a 

unique composition of various project 

components to explore combined 

effects, or an emerging project 

component that needs further testing. 

(c) Quality of the project design. (1) 

The Secretary considers the quality of 

the design of the proposed project. 

(2) In determining the quality of the 

design of the proposed project, the 

Secretary considers one or more of the 

following factors: 

(i) The extent to which the goals, 

objectives, and outcomes to be achieved 

by the proposed project are clearly 

specified, measurable, and ambitious 

yet achievable within the project period, 

and aligned with the purposes of the 

grant program. 

(ii) The extent to which the design of 

the proposed project demonstrates 

community engagement and input to 

ensure that the project is appropriate to 

successfully address the needs of the 

target population or other identified 

needs and will be used to inform 

continuous improvement strategies. 

(iii) The quality of the conceptual 

framework, such as a logic model, 

underlying the proposed project, 

including how inputs are related to 

outcomes. 

(iv) The extent to which the proposed 

project’s logic model was developed 

based on engagement of a broad range 

of community members and partners. 

(v) The extent to which the proposed 

project proposes specific, measurable 

targets, connected to strategies, 

activities, resources, outputs, and 

outcomes. 

(vi) The extent to which the design of 

the proposed project includes a 

thorough, high-quality review of the 

relevant literature, a high-quality plan 

for project implementation, and the use 

of appropriate methodological tools to 

enable successful achievement of 

project objectives. 

(vii) The quality of the proposed 

demonstration design, such as 

qualitative and quantitative design, and 

procedures for documenting project 

activities and results for underserved 

populations. 

(viii) The extent to which the design 

for implementing and evaluating the 

proposed project will result in 


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information to guide possible 

replication of project activities or 

strategies, including valid and reliable 

information about the effectiveness of 

the approach or strategies employed by 

the project. 

(ix) The extent to which the proposed 

development efforts include adequate 

quality controls, continuous 

improvement efforts, and, as 

appropriate, repeated testing of 

products. 

(x) The extent to which the proposed 

project demonstrates that it is designed 

to build capacity and yield sustainable 

results that will extend beyond the 

project period. 

(xi) The extent to which the design of 

the proposed project reflects the most 

recent and relevant knowledge and 

practices from research and effective 

practice. 

(xii) The extent to which the proposed 

project represents an exceptional 

approach for meeting program purposes 

and requirements and serving the target 

population. 

(xiii) The extent to which the 

proposed project represents an 

exceptional approach to any absolute 

priority or absolute priorities 

established for the competition. 

(xiv) The extent to which the 

proposed project will integrate or build 

on ideas, strategies, and efforts from 

similar external projects to improve 

relevant outcomes, using existing 

funding streams from other programs or 

policies supported by community, State, 

and Federal resources. 

(xv) The extent to which the proposed 

project is informed by similar past 

projects implemented by the applicant 

with demonstrated results. 

(xvi) The extent to which the 

proposed project will include 

coordination with other Federal 

investments, as well as appropriate 

agencies and organizations providing 

similar services to the target population. 

(xvii) The extent to which the 

proposed project is part of a 

comprehensive effort to improve 

teaching and learning and support 

rigorous academic standards and 

increased social, emotional, and 

educational development for students, 

including members of underserved 

populations. 

(xviii) The extent to which the 

proposed project encourages explicit 

plans for authentic, meaningful, and 

ongoing community member and 

partner engagement, including their 

involvement in planning, implementing, 

and revising project activities for 

underserved populations. 

(xix) The extent to which the 

proposed project encourages consumer 

involvement. 

(xx) The extent to which performance 

feedback and formative data are integral 

to the design of the proposed project 

and will be used to inform continuous 

improvement. 

(xxi) The extent to which fellowship 

recipients or other project participants 

are to be selected on the basis of 

academic excellence. 

(xxii) The extent to which the 

applicant demonstrates that it has the 

resources to operate the project beyond 

the project period, including a multiyear 

financial and operating model and 

accompanying plan; the demonstrated 

commitment of any partners; 

demonstration of broad support from 

community members and partners (such 

as State educational agencies, teachers’ 

unions, families, business and industry, 

community members, and State 

vocational rehabilitation agencies) that 

are critical to the project’s long-term 

success; or capacity-building leveraged 

from more than one of these types of 

resources. 

(xxiii) The potential and planning for 

the incorporation of project purposes, 

activities, or benefits into the ongoing 

work of the applicant beyond the end of 

the project period. 

(xxiv) The extent to which the 

proposed project will increase efficiency 

in the use of time, staff, money, or other 

resources in order to improve results 

and increase productivity. 

(xxv) The extent to which the 

proposed project will integrate with, or 

build on, similar or related efforts in 

order to improve relevant outcomes, 

using nonpublic funds or resources. 

(xxvi) The extent to which the 

proposed project demonstrates a 

rationale that is aligned with the 

purposes of the grant program. 

(xxvii) The extent to which the 

proposed project represents 

implementation of the evidence cited in 

support of the proposed project with 

fidelity. 

(xxiii) The extent to which the 

applicant plans to allocate a significant 

portion of its requested funding to the 

evidence-based project components. 

(xxix) The strength of the 

commitment from key decision-makers 

at proposed implementation sites. 

(d) Quality of project services. (1) The 

Secretary considers the quality of the 

services to be provided by the proposed 

project. 

(2) In determining the quality of the 

services to be provided by the proposed 

project, the Secretary considers the 

quality and sufficiency of strategies for 

ensuring equitable and adequate access 

and participation for project 

participants who experience barriers 

based on one or more of the following: 

economic disadvantage; gender; race; 

ethnicity; color; national origin; 

disability; age; language; migration; 

living in a rural location; experiencing 

homelessness or housing insecurity; 

involvement with the justice system; 

pregnancy, parenting, or caregiver 

status; and sexual orientation. This 

determination includes the steps 

developed and described in the form 

Equity For Students, Teachers, And 

Other Program Beneficiaries (OMB 

Control No. 1894–0005) (section 427 of 

the General Education Provisions Act 

(20 U.S.C. 1228a)). 

(3) In addition, the Secretary 

considers one or more of the following 

factors: 

(i) The extent to which the services to 

be provided by the proposed project 

were determined with input from the 

community to be served to ensure that 

they are appropriate to the needs of the 

intended recipients or beneficiaries, 

including underserved populations, of 

those services. 

(ii) The extent to which the proposed 

project is supported by entities that it is 

intended to serve. 

(iii) The extent to which the services 

to be provided by the proposed project 

reflect up-to-date knowledge and an 

evidence-based project component. 

(iv) The likely benefit to the intended 

recipients, as indicated by the logic 

model, of the services to be provided. 

(v) The extent to which the training or 

professional development services to be 

provided by the proposed project are of 

sufficient quality, intensity, and 

duration to build recipient and project 

capacity in ways that lead to 

improvements in practice among the 

recipients of those services. 

(vi) The extent to which the services 

to be provided by the proposed project 

are likely to provide long-term solutions 

to alleviate the personnel shortages that 

have been identified or are the focus of 

the proposed project. 

(vii) The likelihood that the services 

to be provided by the proposed project 

will lead to meaningful improvements 

in the achievement of students as 

measured against rigorous and relevant 

standards. 

(viii) The likelihood that the services 

to be provided by the proposed project 

will lead to meaningful improvements 

in early childhood and family outcomes. 

(ix) The likelihood that the services to 

be provided by the proposed project 

will lead to meaningful improvements 

in the skills and competencies necessary 

to gain employment in high-quality jobs, 


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careers, and industries or build capacity 

for independent living. 

(x) The extent to which the services 

to be provided by the proposed project 

involve the collaboration of appropriate 

partners, including those from 

underserved populations, for 

maximizing the effectiveness of project 

services. 

(xi) The extent to which the services 

to be provided by the proposed project 

involve the use of efficient strategies, 

including the use of technology, as 

appropriate, and the leveraging of nonproject resources. 

(xii) The extent to which the services 

to be provided by the proposed project 

are focused on recipients, community 

members, or project participants that are 

most underserved as demonstrated by 

the data relevant to the project. 

(e) Quality of the project personnel. 

(1) The Secretary considers the quality 

of the personnel who will carry out the 

proposed project. 

(2) In determining the quality of 

project personnel, the Secretary 

considers the extent to which the 

applicant demonstrates that it has 

project personnel or a plan for hiring of 

personnel who are members of groups 

that have historically encountered 

barriers, or who have professional or 

personal experiences with barriers, 

based on one or more of the following: 

economic disadvantage; gender; race; 

ethnicity; color; national origin; 

disability; age; language; migration; 

living in a rural location; experiencing 

homelessness or housing insecurity; 

involvement with the justice system; 

pregnancy, parenting, or caregiver 

status; and sexual orientation. 

(3) In addition, the Secretary 

considers one or more of the following 

factors: 

(i) The qualifications required of the 

project director or principal 

investigator, including formal training 

or work experience in fields related to 

the objectives of the project and 

experience in designing, managing, or 

implementing similar projects for the 

target population to be served by the 

project. 

(ii) The qualifications required of each 

of the key personnel in the project, 

including formal training or work 

experience in fields related to the 

objectives of the project and be a 

representative of the target population. 

(iii) The qualifications, including 

relevant training and experience, of 

project consultants or subcontractors. 

(iv) The extent to which the proposed 

project team reflects the demographics 

of project participants to maximize 

inclusion of diverse perspectives. 

(v) The extent to which the proposed 

planning, implementing, and evaluating 

project team are familiar with the assets, 

needs, and other contextual 

considerations of the proposed 

implementation sites. 

(f) Adequacy of resources. (1) The 

Secretary considers the adequacy of 

resources for the proposed project. 

(2) In determining the adequacy of 

resources for the proposed project, the 

Secretary considers one or more of the 

following factors: 

(i) The adequacy of support for the 

project, including facilities, equipment, 

supplies, and other resources, from the 

applicant organization or the lead 

applicant organization. 

(ii) The relevance and demonstrated 

commitment of each partner in the 

proposed project to the implementation 

and success of the project. 

(iii) The extent to which the budget is 

adequate to support the proposed 

project and the costs are reasonable in 

relation to the objectives, design, and 

potential significance of the proposed 

project. 

(iv) The extent to which the costs are 

reasonable in relation to the number of 

persons to be served, the depth and 

intensity of services, and the anticipated 

results and benefits. 

(v) The extent to which the costs of 

the program are reasonable for potential 

entities to adopt. 

(vi) The level of initial matching 

funds or other commitment from 

partners, indicating the likelihood for 

potential continued support of the 

project after Federal funding ends. 

(vii) The potential for the purposes, 

activities, or benefits of the proposed 

project to be institutionalized into the 

ongoing practices and programs of the 

institution, agency, or organization and 

continue after the end date of Federal 

funding. 

(g) Quality of the management plan. 

(1) The Secretary considers the quality 

of the management plan for the 

proposed project. 

(2) In determining the quality of the 

management plan for the proposed 

project, the Secretary considers one or 

more of the following factors: 

(i) The feasibility of the management 

plan to achieve project objectives and 

goals on time and within budget, 

including clearly defined 

responsibilities, timelines, and 

milestones for accomplishing project 

tasks. 

(ii) The adequacy of plans for 

ensuring the use of quantitative and 

qualitative data, including community 

member and partner input, to inform 

continuous improvement in the 

operation of the proposed project. 

(iii) The adequacy of mechanisms for 

ensuring high-quality and accessible 

products and services from the 

proposed project for the target 

population. 

(iv) The extent to which the time 

commitments of the project director and 

principal investigator and other key 

project personnel are appropriate and 

adequate to meet the objectives of the 

proposed project. 

(v) How the applicant will ensure that 

a diversity of perspectives, including 

those from underserved populations, are 

brought to bear in the design, 

implementation, operation, evaluation, 

and improvement of the proposed 

project, including those of parents, 

educators, community-based 

organizations, civil rights organizations, 

the business community, a variety of 

disciplinary and professional fields, 

recipients or beneficiaries of services, or 

others, as appropriate. 

(h) Quality of the project evaluation or 

other evidence-building. (1) The 

Secretary considers the quality of the 

evaluation or other evidence-building of 

the proposed project. 

(2) In determining the quality of the 

evaluation or other evidence-building, 

the Secretary considers one or more of 

the following factors: 

(i) The extent to which the methods 

of evaluation or other evidence-building 

are thorough, feasible, relevant, and 

appropriate to the goals, objectives, and 

outcomes of the proposed project. 

(ii) The extent to which the methods 

of evaluation or other evidence-building 

are appropriate to the context within 

which the project operates and the 

target population of the proposed 

project. 

(iii) The extent to which the methods 

of evaluation or other evidence-building 

provide for describing the fidelity of 

implementation of the project. 

(iv) The extent to which the methods 

of evaluation or other evidence-building 

include the use of objective performance 

measures that are clearly related to the 

intended outcomes of the project and 

will produce quality data that are 

quantitative and qualitative. 

(v) The extent to which the methods 

of the evaluation or other evidencebuilding will provide guidance for 

quality assurance and continuous 

improvement. 

(vi) The extent to which the methods 

of evaluation or other evidence-building 

will provide performance feedback and 

provide formative or interim data that is 

a periodic assessment of progress 

toward achieving intended outcomes. 

(vii) The extent to which the 

evaluation will provide guidance about 

effective strategies suitable for 


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replication or testing and potential 

implementation in other settings. 

(viii) The extent to which the methods 

of evaluation will, if well implemented, 

produce evidence about the 

effectiveness of the project on relevant 

outcomes that would meet the What 

Works Clearinghouse standards without 

reservations, as described in the What 

Works Clearinghouse Handbooks. 

(ix) The extent to which the methods 

of evaluation will, if well implemented, 

produce evidence about the 

effectiveness of the project on relevant 

outcomes that would meet the What 

Works Clearinghouse standards with or 

without reservations, as described in the 

What Works Clearinghouse Handbooks. 

(x) The extent to which the methods 

of evaluation include an experimental 

study, a quasi-experimental design 

study, or a correlational study with 

statistical controls for selection bias 

(such as regression methods to account 

for differences between a treatment 

group and a comparison group) to assess 

the effectiveness of the project on 

relevant outcomes. 

(xi) The extent to which the 

evaluation plan employs an appropriate 

analytic strategy to build evidence about 

the relationship between key project 

components, mediators, and outcomes 

for the purpose of informing specific 

actions on which elements to continue, 

revise, or dissolve. 

(xii) The quality of the evaluation 

plan for measuring fidelity of 

implementation, including thresholds 

for acceptable implementation, to 

inform how implementation is 

associated with outcomes. 

(xiii) The extent to which the 

evaluation plan includes a 

dissemination strategy that is likely to 

promote others’ learning from the 

project. 

(xiv) The qualifications, including 

relevant training, experience, and 

independence, of the evaluator, 

including experience conducting 

evaluations of similar methodology as 

proposed, familiar with evaluations for 

the proposed population and setting. 

(xv) The extent to which the proposed 

project plan includes sufficient 

resources to conduct the project 

evaluation effectively. 

(i) Strategy to scale. (1) The Secretary 

considers the applicant’s strategy to 

effectively scale, including to 

underserved populations, the proposed 

project. 

(2) In determining the applicant’s 

capacity to effectively scale the 

proposed project for recipients and 

community members and partners, 

including those from underserved 

populations, the Secretary considers one 

or more of the following factors: 

(i) The quality of the strategies to 

reach scale by expanding the project to 

new populations or settings. 

(ii) The applicant’s capacity (such as 

qualified personnel, financial resources, 

or management capacity), including 

project partners, to bring the proposed 

project effectively to scale on a national 

or regional level working directly, or 

through partners, during the grant 

period. 

(iii) The applicant’s capacity (such as 

qualified personnel, financial resources, 

or management capacity) to further 

develop and bring the proposed project 

to scale on a regional level working 

directly, or through partners, during the 

grant period, based on the findings of 

the proposed project. 

(iv) The mechanisms the applicant 

will use to broadly disseminate 

information and resources on its project 

to support further development, 

adaptation, or replication by other 

entities to implement project 

components in additional settings or 

with other populations. 

(v) The extent to which there is unmet 

demand for broader implementation of 

the project that is aligned with the 

proposed level of scale. 

(vi) The extent to which there is a 

market of potential entities that will 

commit resources toward 

implementation. 

(vii) The quality of the strategies to 

scale that take into account previous 

barriers to being able to expand the 

proposed project. 

(viii) The quality of the plan to deliver 

project services more efficiently at scale 

and maintain effectiveness. 

(ix) The quality of the plan to develop 

revenue sources that will make the 

program self-sustaining. 

■ 31. Revise § 75.215 to read as follows: 

§ 75.215 How the Department selects a 

new project. 

Sections 75.216 through 75.222 

describe the process the Secretary uses 

to select applications for new grants. All 

these sections apply to a discretionary 

grant program. However, only § 75.216 

applies also to a formula grant 

program.(See § 75.1(b) Discretionary 

grant programs, § 75.1(c) Formula grant 

programs, and § 75.200, How 

applications for new discretionary 

grants and cooperative agreements are 

selected for funding; standards for use 

of cooperative agreements.) 

■ 32. Revise § 75.216 to read as follows: 

§ 75.216 Applications that the Secretary 

may choose not to evaluate for funding. 

The Secretary may choose not to 

evaluate an application if— 

(a) The applicant does not comply 

with all of the procedural rules that 

govern the submission of the 

application; or 

(b) The application does not contain 

the information required under the 

program. 

§ 75.217 [Amended] 

■ 33. Amend § 75.217 by: 

■ a. In paragraph (a), removing the 

words ‘‘the authorizing statute’’ and 

adding in their place the words 

‘‘applicable statutes and regulations’’; 

■ b. In paragraph (c), removing the word 

‘‘solely’’ and adding the words ‘‘and any 

competitive preference points’’ after the 

words ‘‘selection criteria’’; and 

■ c. Removing the parenthetical 

authority citation at the end of the 

section. 

■ 34. Amend § 75.219 by: 

■ a. Revising paragraph (b); and 

■ b. Removing the parenthetical 

authority citation at the end of the 

section. 

The revision reads as follows: 

§ 75.219 Exceptions to the procedures 

under § 75.217. 

* * * * * 

(b)(1) The application was submitted 

under the preceding competition of the 

program; 

(2) The application was not selected 

for funding because the application was 

mishandled or improperly processed by 

the Department; and 

(3) The application has been rated 

highly enough to deserve selection 

under § 75.217; or 

* * * * * 

§ 75.220 [Amended] 

■ 35. Amend § 75.220 by: 

■ a. In paragraph (b)(2), removing the 

words ‘‘Office of the Chief Financial 

Officer (OCFO)’’ and adding, in their 

place, the words ‘‘Office of Finance and 

Operations (OFO)’’; and 

■ b. Removing the parenthetical 

authority citation at the end of the 

section. 

■ 36. Revise § 75.221 to read as follows: 

§ 75.221 Procedures the Department uses 

under § 75.219(b). 

If the special circumstances of 

§ 75.219(b) appear to exist for an 

application, the Secretary may select the 

application for funding if the Secretary 

has documentary evidence that those 

circumstances exist. 

§ 75.222 [Amended] 

■ 37. Amend § 75.222 by: 

■ a. In paragraph (a)(1), removing the 

word ‘‘under’’ before ‘‘which funds’’ 

and adding in its place the word ‘‘for’’; 


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■ b. In paragraph (a)(2)(ii)(B), removing 

the citation ‘‘(a)(2)(ii)’’ and adding in its 

place the citation ‘‘(a)(2)(ii)(A)’’; 

■ c. In paragraph (b)(1), removing the 

word ‘‘ED’’ and adding, it its place, the 

word ‘‘the Department’’; 

■ d. Removing, in paragraph (b)(2), the 

word ‘‘codified’’; 

■ e. Revising the Note; and 

■ f. Removing the parenthetical 

authority citation at the end of the 

section. 

The revision reads as follows: 

§ 75.222 Procedures the Department uses 

under § 75.219(c). 

* * * * * 

Note 1 to § 75.222: To assure prompt 

consideration, an applicant submitting an 

unsolicited application should send the 

application, marked ‘‘Unsolicited 

Application’’ on the outside, to U.S. 

Department of Education, OFO/G5 

Functional Application Team, Mail Stop 

5C231, 400 Maryland Avenue SW, 

Washington, DC 20202–4260. 

■ 38. Revise § 75.225 to read as follows: 

§ 75.225 What procedures does the 

Secretary use when deciding to give special 

consideration to new potential grantees? 

(a) If the Secretary determines that 

special consideration of new potential 

grantees is appropriate, the Secretary 

may establish a separate competition 

under the procedures in § 75.105(c)(3), 

or provide competitive preference under 

the procedures in § 75.105(c)(2). 

(b) As used in this section, ‘‘new 

potential grantee’’ means an applicant 

that meets one or more of the following 

conditions— 

(1) The applicant has never received 

a grant or cooperative agreement, 

including through membership in a 

group application submitted in 

accordance with §§ 75.127 through 

75.129 that received a grant or 

cooperative agreement, under the 

program from which it seeks funds; 

(2) The applicant does not, as of the 

deadline date for submission of 

applications, have an active grant or 

cooperative agreement, including 

through membership in a group 

application submitted in accordance 

with §§ 75.127 through 75.129 that has 

an active grant or cooperative 

agreement, under the program from 

which it seeks funds; 

(3) The applicant has not had an 

active discretionary grant or cooperative 

agreement under the program from 

which it seeks funds, including through 

membership in a group application 

submitted in accordance with §§ 75.127 

through 75.129, within one of the 

following number of years before the 

deadline date for submission of 

applications under the program: 

(i) 1 year; 

(ii) 2 years; 

(iii) 3 years; 

(iv) 4 years; 

(v) 5 years; 

(vi) 6 years; or 

(vii) 7 years; 

(4) The applicant has not had an 

active discretionary grant or cooperative 

agreement from the Department, 

including through membership in a 

group application submitted in 

accordance with §§ 75.127 through 

75.129, within one of the following 

number of years before the deadline 

date for submission of applications 

under the program from which it seeks 

funds: 

(i) 1 year; 

(ii) 2 years; 

(iii) 3 years; 

(iv) 4 years; 

(v) 5 years; 

(vi) 6 years; or 

(vii) 7 years; 

(5) The applicant has not had an 

active contract from the Department 

within one of the following number of 

years before the deadline date for 

submission of applications under the 

program for which it seeks funds: 

(i) 1 year; 

(ii) 2 years; 

(iii) 3 years; 

(iv) 4 years; 

(v) 5 years; 

(vi) 6 years; or 

(vii) 7 years; or 

(6) Any combination of paragraphs 

(b)(1) through (5) of this section. 

(c) If the Secretary determines that 

special consideration of applications 

from new potential grantees is 

appropriate and chooses, under the 

procedures in § 75.105(c)(3), to establish 

a separate competition for those 

applicants that meet one or more of the 

conditions in paragraph (b) of this 

section, the Secretary may also establish 

a separate competition for applications 

that do not meet such priority under the 

procedures in § 75.105(c)(3) and 

consider those applications separately. 

(d) As used in this section, an 

‘‘application from a grantee that is not 

a new potential grantee’’ means an 

applicant that meets one or more of the 

following conditions— 

(1) The applicant has received a grant 

or cooperative agreement, including 

through membership in a group 

application submitted in accordance 

with §§ 75.127 through 75.129 that 

received a grant or cooperative 

agreement, under the program from 

which it seeks funds; 

(2) The applicant has, as of the 

deadline date for submission of 

applications, an active grant or 

cooperative agreement, including 

through membership in a group 

application submitted in accordance 

with §§ 75.127 through 75.129 that has 

an active grant or cooperative 

agreement, under the program from 

which it seeks funds; 

(3) The applicant has had an active 

discretionary grant or cooperative 

agreement under the program from 

which it seeks funds, including through 

membership in a group application 

submitted in accordance with §§ 75.127 

through 75.129, within one of the 

following number of years before the 

deadline date for submission of 

applications under the program: 

(i) 1 year; 

(ii) 2 years; 

(iii) 3 years; 

(iv) 4 years; 

(v) 5 years; 

(vi) 6 years; or 

(vii) 7 years; 

(4) The applicant has had an active 

discretionary grant or cooperative 

agreement from the Department, 

including through membership in a 

group application submitted in 

accordance with §§ 75.127 through 

75.129, within one of the following 

number of years before the deadline 

date for submission of applications 

under the program from which it seeks 

funds: 

(i) 1 year; 

(ii) 2 years; 

(iii) 3 years; 

(iv) 4 years; 

(v) 5 years; 

(vi) 6 years; or 

(vii) 7 years; 

(5) The applicant has had an active 

contract from the Department within 

one of the following number of years 

before the deadline date for submission 

of applications under the program from 

which it seeks funds: 

(i) 1 year; 

(ii) 2 years; 

(iii) 3 years; 

(iv) 4 years; 

(v) 5 years; 

(vi) 6 years; or 

(vii) 7 years. 

(e) For the purpose of this section, a 

grant, cooperative agreement, or 

contract is active until the end of the 

grant’s, cooperative agreement’s, or 

contract’s project or funding period, 

including any extensions of those 

periods that extend the grantee’s or 

contractor’s authority to obligate funds. 

■ 39. Revise § 75.226 to read as follows: 


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§ 75.226 What procedures does the 

Secretary use if the Secretary decides to 

give special consideration to an application 

supported by strong evidence, moderate 

evidence, or promising evidence, or an 

application that demonstrates a rationale? 

If the Secretary determines that 

special consideration of applications 

supported by strong evidence, moderate 

evidence, promising evidence, or 

evidence that demonstrates a rationale 

is appropriate, the Secretary may 

establish a separate competition under 

the procedures in § 75.105(c)(3), or 

provide competitive preference under 

the procedures in § 75.105(c)(2), for 

applications that are supported by— 

(a) Strong evidence; 

(b) Moderate evidence; 

(c) Promising evidence; or 

(d) Evidence that demonstrates a 

rationale. 

■ 40. Add § 75.227 before the 

undesignated center heading 

‘‘Procedures to Make a Grant’’ to read as 

follows: 

§ 75.227 What procedures does the 

Secretary use if the Secretary decides to 

give special consideration to rural 

applicants? 

(a) If the Secretary determines that 

special consideration of rural applicants 

is appropriate, the Secretary may 

establish a separate competition under 

the procedures in § 75.105(c)(3), or 

provide competitive preference under 

the procedures in § 75.105(c)(2). 

(b) As used in this section, ‘‘rural 

applicant’’ means an applicant that 

meets one or more of the following 

conditions— 

(1) The applicant proposes to serve a 

local educational agency (LEA) that is 

eligible under the Small Rural School 

Achievement (SRSA) program or the 

Rural and Low-Income School (RLIS) 

program authorized under title V, part B 

of the Elementary and Secondary 

Education Act of 1965. 

(2) The applicant proposes to serve a 

community that is served by one or 

more LEAs— 

(i) With a locale code of 32, 33, 41, 42, 

or 43; or 

(ii) With a locale code of 41, 42, or 43. 

(3) The applicant proposes a project 

in which a majority of the schools 

served— 

(i) Have a locale code of 32, 33, 41, 

42, or 43; or 

(ii) Have a locale code of 41, 42, or 43. 

(4) The applicant is an institution of 

higher education (IHE) with a rural 

campus setting, or the applicant 

proposes to serve a campus with a rural 

setting. Rural settings include one or 

more of the following: Town-Fringe, 

Town-Distant, Town-Remote, Rural 

Fringe, Rural-Distant, and RuralRemote, as defined by the National 

Center for Education Statistics (NCES) 

College Navigator search tool. 

(c) If the Secretary determines that 

special consideration of rural applicants 

is appropriate and chooses, under the 

procedures in § 75.105(c)(3), to establish 

a separate competition for those 

applicants that meet one or more of the 

conditions in paragraph (b) of this 

section, the Secretary may also establish 

a separate competition for applications 

that do not meet that priority under the 

procedures in § 75.105(c)(3) and 

consider such applications separately. 

(d) As used in this section, a ‘‘nonrural applicant’’ means an applicant that 

meets one or more of the following 

conditions— 

(1) The applicant does not propose to 

serve a local educational agency (LEA) 

that is eligible under the Small Rural 

School Achievement (SRSA) program or 

the Rural and Low-Income School 

(RLIS) program authorized under title V, 

part B of the Elementary and Secondary 

Education Act of 1965. 

(2) The applicant does not propose to 

serve a community that is served by one 

or more LEAs— 

(i) With a locale code of 32, 33, 41, 42, 

or 43; or 

(ii) With a locale code of 41, 42, or 43. 

(3) The applicant proposes a project 

in which a majority of the schools 

served— 

(i) Have a locale code of 32, 33, 41, 

42, or 43; or 

(ii) Have a locale code of 41, 42, or 43. 

(4) The applicant is not an institution 

of higher education (IHE) with a rural 

campus setting, or the applicant 

proposes to serve a campus with a rural 

setting. Rural settings include one or 

more of the following: Town-Fringe, 

Town-Distant, Town-Remote, Rural 

Fringe, Rural-Distant, and RuralRemote, as defined by the National 

Center for Education Statistics (NCES) 

College Navigator search tool. 

■ 41. Revise § 75.230 to read as follows: 

§ 75.230 How the Department makes a 

grant. 

(a) If the Secretary selects an 

application under §§ 75.217, 75.220, or 

75.222, the Secretary follows the 

procedures in §§ 75.231 through 75.236 

to set the amount and determine the 

conditions of a grant. Sections 75.235 

through 75.236 also apply to grants 

under formula grant programs. (See 

§ 75.200 for more information.) 

§ 75.234 [Amended] 

■ 42. Amend § 75.234 by: 

■ a. In paragraph (a)(2), removing the 

word ‘‘special’’ and adding in its place 

the word ‘‘specific’’; and 

■ b. Removing the parenthetical 

authority citation at the end of the 

section. 

■ 43. Revise § 75.250 to read as follows: 

§ 75.250 Maximum project period. 

The Secretary may approve a project 

period of up to 60 months to perform 

the substantive work of a grant unless 

an applicable statute provides 

otherwise. 

■ 44. Revise § 75.253 to read as follows: 

§ 75.253 Continuation of a multiyear 

project after the first budget period. 

(a) Continuation award. A grantee, in 

order to receive a continuation award 

from the Secretary for a budget period 

after the first budget period of an 

approved multiyear project, must— 

(1) Either— 

(i) Demonstrate that it has made 

substantial progress in achieving— 

(A) The goals and objectives of the 

project; and 

(B) The performance targets in the 

grantee’s approved application, if the 

Secretary established performance 

measurement requirements for the grant 

in the application notice; or 

(ii) Obtain the Secretary’s approval for 

changes to the project that— 

(A) Do not increase the amount of 

funds obligated to the project by the 

Secretary; and 

(B) Enable the grantee to achieve the 

goals and objectives of the project and 

meet the performance targets of the 

project, if any, without changing the 

scope or objectives of the project; 

(2) Submit all reports as required by 

§ 75.118; 

(3) Continue to meet all applicable 

eligibility requirements of the grant 

program; 

(4) Maintain financial and 

administrative management systems 

that meet the requirements in 2 CFR 

200.302 and 200.303; and 

(5) Receive a determination from the 

Secretary that continuation of the 

project is in the best interest of the 

Federal Government. 

(b) Information considered in making 

a continuation award. In determining 

whether the grantee has met the 

requirements described in paragraph (a) 

of this section, the Secretary may 

consider any relevant information 

regarding grantee performance. This 

includes considering reports required by 

§ 75.118, performance measures 

established by § 75.110, financial 

information required by 2 CFR part 200, 

and any other relevant information. 

(c) Funding for continuation awards. 

Subject to the criteria in paragraphs (a) 

and (b) of this section, in selecting 

applications for funding under a 


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program, the Secretary gives priority to 

continuation awards over new grants. 

(d) Budget period. If the Secretary 

makes a continuation award under this 

section— 

(1) The Secretary makes the award 

under §§ 75.231 through 75.236; and 

(2) The new budget period begins on 

the day after the previous budget period 

ends. 

(e) Amount of continuation award. (1) 

Within the original project period of the 

grant and notwithstanding any 

requirements in 2 CFR part 200, a 

grantee may expend funds that have not 

been obligated at the end of a budget 

period for obligations of subsequent 

budget periods if— 

(i) The obligation is for an allowable 

cost within the approved scope and 

objectives of the project; and 

(ii) The obligation is not otherwise 

prohibited by applicable statutes, 

regulations, or the conditions of an 

award. 

(2) The Secretary may— 

(i) Require the grantee to submit a 

written statement describing how the 

funds made available under paragraph 

(e)(1) of this section will be used; and 

(ii) Determine the amount of new 

funds that the Department will make 

available for the subsequent budget 

period after considering the statement 

the grantee provides under paragraph 

(e)(2)(i) of this section and any other 

information available to the Secretary 

about the use of funds under the grant. 

(3) In determining the amount of new 

funds to make available to a grantee 

under this section, the Secretary 

considers whether the unobligated 

funds made available are needed to 

complete activities that were planned 

for completion in the prior budget 

period. 

(4) A decision to reduce the amount 

of a continuation award under this 

paragraph (e) does not entitle a grantee 

to reconsideration under 2 CFR 200.341. 

(f) Decision not to make a 

continuation award. The Secretary may 

decide not to make a continuation 

award if— 

(1) A grantee fails to meet any of the 

requirements in paragraph (a) of this 

section; or 

(2) A grantee fails to ensure that data 

submitted to the Department as a 

condition of the grant meet the 

definition of ‘‘quality data’’ in 34 CFR 

77.1(c) and does not have a plan 

acceptable to the Secretary for 

addressing data-quality issues in the 

next budget period. 

(g) Request for reconsideration. If the 

Secretary decides not to make a 

continuation award under this section, 

the Secretary will notify the grantee of 

that decision, the grounds on which it 

is based, and, consistent with 2 CFR 

200.341, provide the grantee with an 

opportunity to request reconsideration 

of the decision. 

(1) A request for reconsideration 

must— 

(i) Be submitted in writing to the 

Department official identified in the 

notice denying the continuation award 

by the date specified in that notice; and 

(ii) Set forth the grantee’s basis for 

disagreeing with the Secretary’s 

decision not to make a continuation 

award and include relevant supporting 

documentation. 

(2) The Secretary will consider the 

request for reconsideration. 

(h) No-cost extension when a 

continuation award is not made. If the 

Secretary decides not to make a 

continuation award under this section, 

the Secretary may authorize a no-cost 

extension of the last budget period of 

the grant in order to provide for the 

orderly closeout of the grant. 

(i) A decision to reduce or not to make 

a continuation award does not 

constitute withholding. A decision by 

the Secretary to reduce the amount of a 

continuation award under paragraph (e) 

of this section or to not make a 

continuation award under paragraph (f) 

of this section does not constitute a 

withholding under section 455 of GEPA 

(20 U.S.C. 1234d). 

■ 45. Revise § 75.254 to read as follows: 

§ 75.254 Data collection period. 

(a) The Secretary may approve a data 

collection period for a grant for a period 

of up to 72 months after the end of the 

project period and provide funds for the 

data collection period for the purpose of 

collecting, analyzing, and reporting 

performance measurement data on the 

project. 

(b) If the Secretary plans to approve 

a data collection period, the Secretary 

may inform applicants of the Secretary’s 

intent to approve data collection periods 

in the application notice published for 

a competition or may decide to fund 

data collection periods after grantees 

have started their project periods. 

(c) If the Secretary informs applicants 

of the intent to approve data collection 

periods in the notice inviting 

applications, the Secretary may require 

applicants to include in the application 

a budget for, and description of, a data 

collection period for a period of up to 

72 months, as specified in the notice 

inviting applications, after the end of 

the project period. 

§ 75.260 [Amended] 

■ 46. Amend § 75.260 by: 

■ a. In paragraph (b), removing the 

words ‘‘the authorizing statute for that 

program’’ and adding in their place the 

words ‘‘applicable statutes and 

regulations’’; and 

■ b. Removing the parenthetical 

authority citation at the end of the 

section. 

■ 47. Revise § 75.261 to read as follows: 

§ 75.261 Extension of a project period. 

(a) One-time extension of project 

period without prior approval. A grantee 

may extend the project period of an 

award one time, for a period up to 12 

months, without the prior approval of 

the Secretary, if— 

(1) The grantee meets the 

requirements for extension in 2 CFR 

200.308(e)(2); and 

(2) The extension is not otherwise 

prohibited by statute, regulation, or the 

conditions of an award. 

(b) Extension of project period with 

prior approval. At the conclusion of the 

project period extension authorized 

under paragraph (a) of this section, or in 

any case in which a project period 

extension is not authorized under 

paragraph (a) of this section, a grantee, 

with prior approval of the Secretary, 

may extend a project for an additional 

period if— 

(1) The extension is not otherwise 

prohibited by statute, regulations, or the 

conditions of an award; 

(2) The extension does not involve the 

obligation of additional Federal funds; 

(3) The extension is to carry out the 

approved objectives and scope of the 

project; and 

(4)(i) The Secretary determines that, 

due to special or unusual circumstances 

applicable to a class of grantees, the 

project periods for the grantees should 

be extended; or 

(ii)(A) The Secretary determines that 

special or unusual circumstances would 

delay completion of the project beyond 

the end of the project period; 

(B) The grantee requests an extension 

of the project period at least 45 calendar 

days before the end of the project 

period; and 

(C) The grantee provides a written 

statement, before the end of the project 

period, of the reasons the extension is 

appropriate under paragraph 

(b)(4)(ii)(A) of this section and the 

period for which the project extension 

is requested. 

(c) Waiver. The Secretary may waive 

the requirement in paragraph 

(b)(4)(ii)(B) of this section if— 

(1) The grantee could not reasonably 

have known of the need for the 

extension on or before the start of the 

45-day period; or 

(2) The failure to give notice on or 

before the start of the 45-day period was 

unavoidable. 


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§ 75.263 [Amended] 

■ 48. Amend § 75.263 by: 

■ a. Removing ‘‘, notwithstanding any 

requirement in 2 CFR part 200,’’ from 

the introductory text. 

■ b. Removing the parenthetical 

authority citation at the end of the 

section. 

§ 75.264 [Amended] 

■ 49. Remove the authority citation at 

the end of the section. 

■ 50. Amend § 75.500 by revising 

paragraph (a) to read as follows: 

§ 75.500 Federal statutes and regulations 

on nondiscrimination. 

(a) Each grantee must comply with the 

following statutes and regulations: 

TABLE 1 TO § 75.500(a) 

Subject Statute Regulations 

Discrimination on the basis of race, color, or national origin Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et 

seq.).

34 CFR part 100. 

Discrimination on the basis of sex ......................................... Title IX of the Education Amendments of 1972 (20 U.S.C. 

1681 et seq.).

34 CFR part 106. 

Discrimination on the basis of disability ................................ Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) 34 CFR part 104. 

Discrimination on the basis of age ........................................ Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.) ........ 34 CFR part 110. 

* * * * * 

§ 75.519 [Amended] 

■ 51. Amend § 75.519 by: 

■ a. Removing the words ‘‘its grantee’’ 

and adding in their place the words ‘‘its 

grant’’; 

■ b. Adding ‘‘, consistent with the cost 

principles described in 2 CFR part 200’’ 

after the word ‘‘funds’’; and 

■ c. Removing the parenthetical 

authority citation at the end of the 

section. 

§ 75.531 [Amended] 

■ 52. Amend § 75.531 by removing the 

word ‘‘insure’’ and adding in its place 

the word ‘‘ensure’’. 

§ 75.533 [Amended] 

■ 53. Amend § 75.533 by: 

■ a. Removing the words ‘‘authorizing 

statute or implementing regulations for 

the program’’ and adding in their place 

the words ‘‘applicable statutes and 

regulations’’. 

■ b. Removing the parenthetical 

authority citation at the end of the 

section. 

§ 75.534 [Amended] 

■ 54. Amend § 75.534 in paragraph (a) 

by removing the words ‘‘the program 

statute’’ and adding in their place the 

words ‘‘applicable statutes and 

regulations’’. 

■ 55. Revise § 75.560 to read as follows: 

§ 75.560 General indirect cost rates and 

cost allocation plans; exceptions. 

(a) The differences between direct and 

indirect costs and the principles for 

determining the general indirect cost 

rate that a grantee may use for grants 

under most programs are specified in 

the cost principles for— 

(1) All grantees, other than hospitals 

and commercial (for-profit) 

organizations, at 2 CFR part 200, subpart 

E; 

(2) Hospitals, at 45 CFR part 75, 

appendix XI; and 

(3) Commercial (for-profit) 

organizations, at 48 CFR part 31. 

(b) Except as specified in paragraph 

(c) of this section, a grantee must have 

obtained a current indirect cost rate 

agreement or approved cost allocation 

plan from its cognizant agency, to 

charge indirect costs to a grant. To 

obtain a negotiated indirect cost rate 

agreement or approved cost allocation 

plan, a grantee must submit an indirect 

cost rate proposal or cost allocation plan 

to its cognizant agency within 90 days 

after the date on which the Department 

issues the Grant Award Notification 

(GAN). 

(c) A grantee that meets the 

requirements in 2 CFR 200.414(f) may 

elect to charge the de minimis rate of 

modified total direct costs (MTDC) 

specified in that provision, which may 

be used indefinitely. The de minimis 

rate may not be used on programs that 

have statutory or regulatory restrictions 

on the indirect cost rate. No 

documentation is required to justify the 

de minimis rate. 

(1) If the grantee has established a 

threshold for equipment that is lower 

than the amount specified in the 

Uniform Guidance, the grantee must use 

that threshold to exclude equipment 

from the MTDC base. 

(2) For purposes of the MTDC base 

and application of the de minimis rate, 

MTDC includes up to the amount 

specified in the definition of MTDC in 

the Uniform Guidance of each 

subaward, each year. 

(d) If a grantee is required to, but does 

not, have a federally recognized indirect 

cost rate agreement or approved cost 

allocation plan, the Secretary may 

permit the grantee to charge its grant for 

indirect costs at a temporary rate of 10 

percent of budgeted direct salaries and 

wages. 

(e)(1) If a grantee fails to submit an 

indirect cost rate proposal or cost 

allocation plan to its cognizant agency 

within the required 90 days, the grantee 

may not charge indirect costs to its grant 

from the end of the 90-day period until 

it obtains a federally recognized indirect 

cost rate agreement applicable to the 

grant. 

(2) If the Secretary determines that 

exceptional circumstances warrant 

continuation of a temporary indirect 

cost rate, the Secretary may authorize 

the grantee to continue charging indirect 

costs to its grant at the temporary rate 

specified in paragraph (d) of this section 

even though the grantee has not 

submitted its indirect cost rate proposal 

within the 90-day period. 

(3) Once a grantee obtains a federally 

recognized indirect cost rate that is 

applicable to the affected grant, the 

grantee may use that indirect cost rate 

to claim indirect cost reimbursement for 

expenditures made on or after the date 

on which the grantee submitted its 

indirect cost proposal to its cognizant 

agency or the start of the project period, 

whichever is later. However, this 

authority is subject to the following 

limitations: 

(i) The total amount of funds 

recovered by the grantee under the 

federally recognized indirect cost rate is 

reduced by the amount of indirect costs 

previously recovered under the 

temporary indirect cost rate specified in 

paragraph (d) of this section. 

(ii) The grantee must obtain prior 

approval from the Secretary to shift 

direct costs to indirect costs in order to 

recover indirect costs at a higher 

negotiated indirect cost rate. 

(iii) The grantee may not request 

additional funds to recover indirect 

costs that it cannot recover by shifting 

direct costs to indirect costs. 

(f) The Secretary accepts a current 

indirect cost rate and cost allocation 

plan approved by a grantee’s cognizant 


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agency but may establish a restricted 

indirect cost rate or cost allocation plan 

compliant with 34 CFR 76.564 through 

76.569 to satisfy the statutory 

requirements of certain programs 

administered by the Department. 

■ 56. Amend § 75.561 by: 

■ a. Revising the section heading and 

paragraph (a); and 

■ b. Removing the second sentence of 

paragraph (b). 

The revisions read as follows: 

§ 75.561 Approval of indirect cost rates 

and cost allocation plans. 

(a) If the Department of Education is 

the cognizant agency, the Secretary 

approves an indirect cost rate or cost 

allocation plan for a grantee that is 

eligible and does not elect a de minimis 

rate, and is not a local educational 

agency. For the purposes of this section, 

the term ‘‘local educational agency’’ 

does not include a State agency. 

* * * * * 

■ 57. Revise § 75.562 to read as follows: 

§ 75.562 Indirect cost rates for educational 

training projects; exceptions. 

(a) Educational training grants 

provide funds for training or other 

educational services. Examples of the 

work supported by training grants are 

summer institutes, training programs for 

selected participants, the introduction 

of new or expanded courses, and similar 

instructional undertakings that are 

separately budgeted and accounted for 

by the sponsoring institution. These 

grants do not usually support activities 

involving research, development, and 

dissemination of new educational 

materials and methods. Training grants 

largely implement previously developed 

materials and methods and require no 

significant adaptation of techniques or 

instructional services to fit different 

circumstances. 

(b) The Secretary uses the definition 

in paragraph (a) of this section to 

determine which grants are educational 

training grants. 

(c)(1) Indirect cost reimbursement on 

a training grant is limited to the lesser 

of the recipient’s approved indirect cost 

rate, or 8 percent of the modified total 

direct cost (MTDC) base. MTDC is 

defined in 2 CFR 200.1. 

(2) If the grantee does not have a 

federally recognized indirect cost rate 

agreement on the date on which the 

training grant is awarded, the grantee 

may elect to use the temporary indirect 

cost rate authorized under § 75.560(d)(3) 

or a rate of 8 percent of the MTDC base. 

The de minimis rate may not be used on 

educational training programs. 

(i) If the grantee has established a 

threshold for equipment that is lower 

than the amount specified in the 

Uniform Guidance, the grantee must use 

that threshold to exclude equipment 

from the MTDC base. 

(ii) For purposes of the MTDC base 

and application of the 8 percent rate, 

MTDC includes up to the amount 

specified in the definition of MTDC in 

the Uniform Guidance of each 

subaward, each year. 

(3) The 8 percent indirect cost rate 

reimbursement limit specified in 

paragraph (c)(1) of this section also 

applies when subrecipients issue 

subawards that fund training, as 

determined by the Secretary under 

paragraph (b) of this section. 

(4) The 8 percent limit does not apply 

to agencies of Indian tribal governments, 

local governments, and States as defined 

in 2 CFR 200.1. 

(5) Indirect costs in excess of the 8 

percent limit may not be charged 

directly, used to satisfy matching or 

cost-sharing requirements, or charged to 

another Federal award. 

(d) A grantee using the training rate of 

8 percent is required to maintain 

documentation to justify the 8 percent 

rate. 

■ 58. Revise § 75.563 to read as follows: 

§ 75.563 Restricted indirect cost rate or 

cost allocation plans—programs covered. 

If a grantee or subgrantee decides to 

charge indirect costs to a program that 

is subject to a statutory prohibition on 

using Federal funds to supplant nonFederal funds, the grantee shall— 

(a) Use a negotiated restricted indirect 

cost rate or restricted cost allocation 

plan compliant with 34 CFR 76.564 

through 76.569; or 

(b) Elect to use an indirect cost rate of 

8 percent of the modified total direct 

costs (MTDC) base if the grantee or 

subgrantee does not have a negotiated 

restricted indirect cost rate. MTDC is 

defined in 2 CFR 200.1. If the Secretary 

determines that the grantee or 

subgrantee would have a lower rate 

under 34 CFR 76.564 through 76.569, 

the lower rate shall be used on the 

affected program. 

(c) If the grantee has established a 

threshold for equipment that is lower 

than the amount specified in the 

Uniform Guidance, the grantee must use 

that threshold to exclude equipment 

from the MTDC base. 

(d) For purposes of the MTDC base 

and application of the 8 percent rate, 

MTDC includes up to the amount 

specified in the definition of MTDC in 

the Uniform Guidance of each 

subaward, each year. 

■ 59. Amend § 75.564 by: 

■ a. Revising paragraph (b); 

■ b. Adding the words ‘‘and other 

applicable restrictions’’ at end of 

paragraph (d); 

■ c. Removing the word ‘‘for’’ after the 

phrase ‘‘to the direct cost base’’ and 

adding in its place the word ‘‘of’’ in 

paragraph (e)(1); 

■ d. Adding the words ‘‘and program 

requirements’’ at the end of paragraph 

(e)(1); 

■ e. Removing the hyphen between 

‘‘sub’’ and ‘‘awards’’ in paragraph (e)(2); 

and 

■ f. Removing the parenthetical 

authority citation at the end of the 

section. 

The revision reads as follows: 

§ 75.564 Reimbursement of indirect costs. 

* * * * * 

(b) The application of the negotiated 

indirect cost rate (determination of the 

direct cost base) or cost allocation plan 

(charging methodology) must be in 

accordance with the agreement/plan 

approved by the grantee’s cognizant 

agency. 

* * * * * 

§ 75.580 [Amended] 

■ 60. Amend § 75.580 is amended by 

removing the parenthetical authority 

citation. 

■ 61. Amend § 75.590 by: 

■ a. Adding paragraph (c); and 

■ b. Removing the parenthetical 

authority citation at the end of the 

section. 

The revision reads as follows: 

§ 75.590 Grantee evaluations and reports. 

* * * * * 

(c) An application notice for a 

competition may require each grantee 

under that competition to do one or 

more of the following: 

(1) Conduct an independent 

evaluation; 

(2) Make public the final report, 

including results of any required 

independent evaluation; 

(3) Ensure that the data from the 

independent evaluation are made 

available to third-party researchers 

consistent with applicable privacy 

requirements; 

(4) Submit the final evaluation to the 

Education Resources Information Center 

(ERIC), which is administered by the 

Institute of Education Sciences; or 

(5) Submit the final performance 

report under the grant to ERIC. 

■ 62. Revise § 75.591 to read as follows: 

§ 75.591 Federal evaluation; cooperation 

by a grantee. 

A grantee must cooperate in any 

evaluation of the program by the 

Secretary, in accordance with program 


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statute. If requested by the Secretary, a 

grantee must— 

(a) Cooperate with the collection of 

information, including from all or a 

subset of subgrantees and potential 

project beneficiaries, including both 

participants and non-participants, 

through surveys, observations, 

administrative records, or other data 

collection and analysis methods. This 

information collection may include 

program characteristics, including uses 

of program funds, as well as beneficiary 

characteristics, participation, and 

outcomes; and 

(b) If required by the Secretary, pilot 

its Department-funded activities with a 

subset of subgrantees, potential project 

beneficiaries, or eligible participants 

and allow the Department or its agent to 

randomly select the subset for the 

purpose of providing a basis for an 

experimental evaluation that could meet 

What Works Clearinghouse standards, 

with or without reservations. 

■ 63. Revise § 75.600 to read as follows: 

§ 75.600 Applicability of using grant funds 

for construction or real property. 

(a) As used in this section, the terms 

‘‘construction’’ and ‘‘minor remodeling’’ 

have the meanings given those terms in 

34 CFR 77.1(c). 

(b) Except as provided in paragraph 

(c) of this section, §§ 75.600 through 

75.618 apply to: 

(1) An applicant that requests funds 

for construction or real property; and 

(2) A grantee whose grant includes 

funds for construction or real property. 

(c) Sections 75.600 through 75.618 do 

not apply to grantees in— 

(1) Programs prohibited from using 

funds for construction or real property 

under § 75.533; and 

(2) Projects determined by the 

Secretary to be minor remodeling under 

34 CFR 77.1(c). 

■ 64. Revise § 75.601 to read as follows: 

§ 75.601 Approval of the construction. 

(a) The Secretary approves a direct 

grantee construction project— 

(1) When the initial grant application 

is approved; or 

(2) After the grant has been awarded. 

(b) A grantee may not advertise or 

place the construction project on the 

market for bidding until after the 

Secretary has made a determination on 

the specifications of the project. 

■ 65. Revise § 75.602 to read as follows: 

§ 75.602 Planning the construction. 

(a) In planning the construction 

project, a grantee— 

(1) Must ensure that the design is 

functional, economical, and not 

elaborate in design or extravagant in the 

use of materials compared with facilities 

of a similar type constructed in the State 

or other applicable geographic area. 

(2) May consider excellence of 

architecture and design and inclusion of 

works of art. A grantee must not spend 

more than 1 percent of the cost of the 

project on works of art. 

(3) May make reasonable provision, 

consistent with the other uses to be 

made of the construction, for areas that 

are adaptable for artistic and other 

cultural activities. 

(b) In developing the proposed budget 

for the construction project, a grantee— 

(1) Must ensure that sufficient funds 

are available to meet any non-Federal 

share of the cost of the construction 

project. 

(2) May budget for reasonable and 

predictable contingency costs consistent 

with 2 CFR 200.433. 

(c) Prior to providing approval of the 

final working specifications of a 

construction project under § 75.601, the 

Secretary considers a grantee’s 

compliance with the following 

requirements, as applicable— 

(1) Title to site (§ 75.610). 

(2) Environmental impact assessment 

(§ 75.611). 

(3) Avoidance of flood hazards 

(§ 75.612). 

(4) Compliance with the Coastal 

Barrier Resources Act (§ 75.613). 

(5) Preservation of historic sites 

(§ 75.614). 

(6) Build America, Buy America Act 

(§ 75.615). 

(7) Energy conservation (§ 75.616). 

(8) Access for individuals with 

disabilities (§ 75.617). 

(9) Safety and health standards 

(§ 75.618). 

■ 66. Revise § 75.603 to read as follows: 

§ 75.603 Beginning the construction. 

(a) A grantee must begin work on the 

construction project within a reasonable 

time after the Secretary has approved 

the project under § 75.601. 

(b) A grantee must follow all 

applicable procurement standards in 2 

CFR part 200, subpart D, when 

advertising or placing the project on the 

market for bidding. 

■ 67. Revise § 75.604 to read as follows: 

§ 75.604 During the construction. 

(a) A grantee must maintain 

competent architectural engineering 

supervision and inspection at the 

construction site to ensure that the work 

conforms to the approved final working 

specifications. 

(b) A grantee must complete the 

construction in accordance with the 

approved final working specifications 

unless a revision is approved. 

(c) If a revision to the timeline, 

budget, or approved final working 

specifications is required, the grantee 

must request prior written approval 

consistent with 2 CFR 200.308(h). 

(d) A grantee must comply with 

Federal laws regarding prevailing wages 

on construction and minor remodeling 

projects assisted with Department 

funding, including, as applicable, 

subchapter IV of chapter 31 of title 40, 

United States Code (commonly known 

as the ‘‘Davis-Bacon Act’’; as applied 

through section 439 of GEPA; 20 U.S.C. 

1232b) and any tribally determined 

prevailing wages. 

(e) A grantee must submit periodic 

performance reports regarding the 

construction project containing 

information specified by the Secretary 

consistent with 2 CFR 200.329(d). 

■ 68. Revise § 75.605 to read as follows: 

§ 75.605 After the construction. 

(a) A grantee must ensure that 

sufficient funds will be available for 

effective operation and maintenance of 

the facilities after the construction is 

complete. 

(b) A grantee must operate and 

maintain the facilities in accordance 

with applicable Federal, State, and local 

requirements. 

(c) A grantee must maintain all 

financial records, supporting 

documents, statistical records, and other 

non-Federal entity records pertinent to 

the construction project consistent with 

2 CFR 200.334. 

■ 69. Revise § 75.606 is revised to read 

as follows: 

§ 75.606 Real property requirements. 

(a) The Secretary approves a direct 

grantee real property project— 

(1) When the initial grant application 

is approved; 

(2) After the grant has been awarded; 

or 

(3) With the approval of a 

construction project under § 75.601. 

(b) A grantee using any grant funds for 

real property acquisition must: 

(1) Comply with the Real Property 

Standards of the Uniform Guidance (2 

CFR 200.310 through 200.316). 

(2) Not dispose of, modify the use of, 

or change the terms of the real property 

title, or other interest in the site and 

facilities without written permission 

and instructions from the Secretary. 

(3) Record the Federal interest in the 

title of the real property in the official 

real property records for the jurisdiction 

in which the facility is located. 

(4) Include a covenant in the title of 

the real property to ensure 

nondiscrimination. 

(5) Report at least annually on the 

status of real property in which the 


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Federal Government retains an interest 

consistent with 2 CFR 200.330. 

(c) A grantee is subject to the 

regulations on relocation assistance and 

real property acquisition in 34 CFR part 

15 and 49 CFR part 24, as applicable 

§ 75.607 through 75.609 [Removed and 

Reserved] 

■ 70. Remove and reserve §§ 75.607 

through 75.609. 

■ 71. Revise § 75.610 to read as follows: 

§ 75.610 Title to site. 

A grantee must have or obtain a full 

title or other interest in the site (such as 

a long-term lease), including right of 

access, that is sufficient to ensure the 

grantee’s undisturbed use and 

possession of the facilities for at least 25 

years after completion of the project or 

for the useful life of the construction, 

whichever is longer. 

■ 72. Revise § 75.611 to read as follows: 

§ 75.611 Environmental impact 

assessment. 

(a) When a grantee’s construction or 

real property project is considered a 

‘‘Major Federal Action,’’ as defined in 

40 CFR 1508.1(q), the grantee must 

include an assessment of the impact of 

the proposed construction on the 

quality of the environment in 

accordance with section 102(2)(C) of the 

National Environmental Policy Act of 

1969 (NEPA) (42 U.S.C. 4332(2)(C)) and 

Executive Order 11514 (35 FR 4247). 

(b) If a grantee’s construction or real 

property project is not considered a 

‘‘Major Federal Action’’ under NEPA, a 

NEPA environmental impact assessment 

is not required; however— 

(1) An environmental impact 

assessment may be required under State 

or local requirements; and 

(2) Grantees are encouraged to 

perform some type of environmental 

assessment for projects that involve 

breaking ground, such as projects to 

expand the size of an existing building 

or replace an outdated building. 

■ 73. Revise § 75.612 to read as follows: 

§ 75.612 Avoidance of flood hazards. 

In planning the construction or real 

property project, a grantee must, in 

accordance with Executive Order 11988 

of May 24, 1977 (3 CFR, 1978 Comp., 

pp. 117–120): 

(a) Evaluate flood hazards in 

connection with the construction; and 

(b) As far as practicable, avoid 

uneconomic, hazardous, or unnecessary 

use of flood plains in connection with 

the construction. 

■ 74. Revise § 75.613 to read as follows: 

§ 75.613 Compliance with the Coastal 

Barrier Resources Act. 

A grantee may not use, within the 

Coastal Barrier Resources System, funds 

made available under a program 

administered by the Secretary for any 

purpose prohibited by the Coastal 

Barrier Resources Act (16 U.S.C. 3501– 

3510). 

■ 75. Revise § 75.614 to read as follows: 

§ 75.614 Preservation of historic sites. 

(a) A grantee must describe the 

relationship of the proposed 

construction to, and probable effect on, 

any district, site, building, structure, or 

object that is: 

(1) Included in the National Register 

of Historic Places; or 

(2) Eligible under criteria established 

by the Secretary of the Interior for 

inclusion in the National Register of 

Historic Places. 

(b) In deciding whether to approve a 

construction project, the Secretary 

considers: 

(1) The information provided by the 

applicant under paragraph (a) of this 

section; and 

(2) Any comments received by the 

Advisory Council on Historic 

Preservation (see 36 CFR subpart 800.2). 

■ 76. Revise § 75.615 to read as follows: 

§ 75.615 Build America, Buy America Act. 

A grantee must comply with the 

requirements of the Build America, Buy 

America Act, Public Law 117–58, 

§ 70901–70927 and implementing 

regulations, as applicable. 

■ 77. Revise § 76.616 to read as follows: 

§ 75.616 Energy conservation. 

(a) To the extent practicable, a grantee 

must design and construct facilities to 

maximize the efficient use of energy. 

(b) A grantee must comply with 

ASHRAE 90.1 in their construction 

project. 

(c) ASHRAE 90.1, Energy Standard for 

Sites and Buildings Except Low-Rise 

Residential Buildings, 2022 is 

incorporated by reference into this 

section with the approval of the Director 

of the Federal Register under 5 U.S.C. 

552(a) and 1 CFR part 51. This material 

is available for inspection at the 

Department of Education (the 

Department) and at the National 

Archives and Records Administration 

(NARA). Contact the Department at: 

Department of Education, 400 Maryland 

Avenue SW, Room 4C212, Washington, 

DC 20202–8472; phone: 202–245–6776; 

email: EDGAR@ed.gov. For information 

on the availability of this material at 

NARA, visit www.archives.gov/federalregister/cfr/ibr-locations or email 

fr.inspection@nara.gov. The material 

may be obtained from the American 

Society of Heating, Refrigerating, and 

Air Conditioning Engineers (ASHRAE) 

at American Society of Heating, 

Refrigerating, and Air Conditioning 

Engineers, Inc., 1791 Tullie Circle NE, 

Atlanta, Georgia 30329; www.ashrae.org. 

■ 78. Revise § 75.617 to read as follows: 

§ 75.617 Access for individuals with 

disabilities. 

A grantee must comply with the 

following Federal regulations on access 

by individuals with disabilities that 

apply to the construction of facilities: 

(a) For residential facilities: 24 CFR 

part 40; and 

(b) For non-residential facilities: 41 

CFR 102–76.60 to 102–76.95. 

§ 75.618 [Redesignated as § 75.619] 

■ 79. Redesignate § 75.618 as § 75.619. 

■ 80. Add new § 75.618 to read as 

follows: 

§ 75.618 Safety and health standards. 

In planning for and designing a 

construction project, a grantee must 

comply with the following: 

(a) The standards under the 

Occupational Safety and Health Act of 

1970 (See 29 CFR part 1910); and 

(b) State and local codes, to the extent 

that they are more stringent. 

■ 81. Revise § 75.620 to read as follows: 

§ 75.620 General conditions on 

publication. 

(a) Content of materials. Subject to 

any specific requirements that apply to 

its grant, a grantee may decide the 

format and content of project materials 

that it publishes or arranges to have 

published. 

(b) Required statement. The grantee 

must ensure that any publication that 

contains project materials also contains 

the following statement: 

The contents of this [insert type of 

publication; such as book, report, film, 

website, and web page] were developed 

under a grant from the U.S. Department 

of Education (Department). The 

Department does not mandate or 

prescribe practices, models, or other 

activities described or discussed in this 

document. The contents of this [insert 

type of publication] may contain 

examples of, adaptations of, and links to 

resources created and maintained by 

another public or private organization. 

The Department does not control or 

guarantee the accuracy, relevance, 

timeliness, or completeness of this 

outside information. The content of this 

[insert type of publication] does not 

necessarily represent the policy of the 

Department. This publication is not 

intended to represent the views or 

policy of, or be an endorsement of any 


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views expressed or materials provided 

by, any Federal agency. 

■ 82. Revise § 75.622 to read as follows: 

§ 75.622 Definition of ‘‘project materials.’’ 

As used in §§ 75.620 through 75.621, 

‘‘project materials’’ means a 

copyrightable work developed with 

funds from a grant of the Department. 

(See 2 CFR 200.307 and 200.315.) 

■ 83. Add § 75.623 to read as follows: 

§ 75.623 Public availability of grantsupported research publications. 

(a) Grantees must make final peerreviewed scholarly publications 

resulting from research supported by 

Department grants available to the 

Education Resources Information Center 

(ERIC), which is administered by the 

Institute of Education Sciences, upon 

acceptance for publication. 

(b) A final, peer-reviewed scholarly 

publication is the final version accepted 

for publication and includes all edits 

made as part of the peer review process, 

as well as all graphics and supplemental 

materials that are associated with the 

article. 

(c) The Department will make the 

final, peer-reviewed scholarly 

publication available to the public 

through ERIC no later than 12 months 

after the official date of publication. 

(d) Grantees are responsible for 

ensuring that any publishing or 

copyright agreements concerning 

submitted articles fully comply with 

this section. 

■ 84. Remove the cross-reference under 

the heading ‘‘Inventions and Patents’’ 

before § 75.626. 

■ 85. Amend § 75.626 by: 

■ a. Revising the section heading; and 

■ b. Removing the parenthetical 

authority citation at the end of the 

section. 

The revision reads as follows: 

§ 75.626 Show Federal support. 

* * * * * 

■ 86. Revise § 75.650 to read as follows: 

§ 75.650 Participation of students enrolled 

in private schools. 

If applicable statutes and regulations 

provide for participation of students 

enrolled in private schools and, as 

applicable, their teachers or other 

educational personnel, and their 

families, the grantee must provide, as 

applicable, services in accordance with 

§§ 299.7 through 299.11. 

§ 75.682 [Amended] 

■ 87. Amend § 75.682 by: 

■ a. Removing the word ‘‘shall’’ and 

adding in its place the word ‘‘must’’; 

■ b. Removing the words ‘‘of 1970’’ after 

the words ‘‘Animal Welfare Act’’; and 

■ c. Removing the parenthetical 

authority citation at the end of the 

section. 

■ 88. Revise § 75.700 to read as follows: 

§ 75.700 Compliance with the U.S. 

Constitution, statutes, regulations, stated 

institutional policies, and applications. 

A grantee must comply with § 75.500, 

applicable statutes, regulations, 

Executive orders, stated institutional 

policies, and applications, and must use 

Federal funds in accordance with the 

U.S. Constitution and those statutes, 

regulations, Executive orders, stated 

institutional policies, and applications. 

§ 75.702 [Amended] 

■ 89. Amend § 75.702 by removing the 

word ‘‘insure’’ and adding in its place 

the word ‘‘ensure’’. 

■ 90. Amend § 75.708 by: 

■ a. Revising paragraph (b) introductory 

text; 

■ b. In paragraph (d)(2), removing the 

words ‘‘Federal statute and executive 

orders and their implementing 

regulations’’ and adding in their place 

the words ‘‘applicable law’’; 

■ c. In paragraph (d)(3), removing the 

word ‘‘anti-discrimination’’ and adding 

in its place the word 

‘‘nondiscrimination’’; 

■ d. Revising paragraph (e); and 

■ e. Removing the parenthetical 

authority citation at the end of the 

section. 

The revisions reads as follows: 

§ 75.708 Subgrants. 

* * * * * 

(b) The Secretary may, through an 

announcement in the Federal Register 

or other reasonable means of notice, 

authorize subgrants when necessary to 

meet the purposes of a program. In this 

announcement, the Secretary will— 

* * * * * 

(e) Grantees that are not allowed to 

make subgrants under paragraph (b) of 

this section are authorized to contract, 

as needed, for supplies, equipment, and 

other services, in accordance with 2 

CFR part 200, subpart D (2 CFR 200.317 

through 200.326). 

■ 91. Amend § 75.720 by: 

■ a. In paragraph (a)(1), removing the 

citation ‘‘2 CFR 200.327’’ and adding in 

its place the citation ‘‘2 CFR 200.328’’; 

■ b. In paragraph (a)(2), removing the 

citation ‘‘2 CFR 200.328’’ and adding in 

its place the citation ‘‘2 CFR 200.329’’; 

■ c. Adding paragraph (d); and 

■ d. Removing the parenthetical 

authority citation at the end of the 

section. 

The addition reads as follows: 

§ 75.720 Financial and performance 

reports. 

* * * * * 

(d) Upon request of the Secretary, a 

grantee shall, at the time of submission 

to the Secretary, post any report on 

performance and financial expenditure 

required by this section on a publicfacing website maintained by the 

grantee. 

■ 92. Amend § 75.740 by: 

■ a. In paragraph (a), revising the 

parenthetical sentence at the end; 

■ b. In paragraph (b), adding ’’ ; 20 

U.S.C. 1232h, commonly known as the 

‘‘Protection of Pupil Rights 

Amendment’’ or ‘‘PPRA’’; and the 

Common Rule for the protection of 

Human Subjects and its implementing 

regulations at 34 CFR part 97, as 

applicable’’ ’’ after the word ‘‘GEPA and 

its implementing regulations at 34 CFR 

part 98’’; and 

■ c. Removing the parenthetical 

authority citation at the end of the 

section. 

The revision reads as follows: 

§ 75.740 Protection of and access to 

student records; student rights in research, 

experimental programs, and testing. 

* * * (Section 444 of GEPA (20 

U.S.C. 1232g) is commonly referred to 

as the ‘‘Family Educational Rights and 

Privacy Act of 1974’’ or ‘‘FERPA’’.) 

* * * * * 

§ 75.900 [Amended] 

■ 93. Amend § 75.900 by removing 

‘‘ED’’ in paragraphs (a) and (b) and 

adding in its place the words ‘‘the 

Department’’. 

§ 75.901 [Amended] 

■ 94. Amend § 75.901 by: 

■ a. In the introductory text, removing 

the words ‘‘that are not subject to other 

procedures’’; and 

■ b. Removing the parenthetical 

authority citation from the end of the 

section. 

PART 76—STATE-ADMINISTERED 

FORMULA GRANT PROGRAMS 

■ 95. The authority citation for part 76 

is revised to read as follows: 

AUTHORITY: 20 U.S.C. 1221e–3 and 

3474, unless otherwise noted. 

Section 76.101 also issued under 20 U.S.C. 

1221e–3, 3474, and 7844(b). 

Section 76.127 also issued under 48 U.S.C. 

1469a. 

Section 76.128 also issued under 48 U.S.C. 

1469a. 

Section 76.129 also issued under 48 U.S.C. 

1469a. 

Section 76.130 also issued under 48 U.S.C. 

1469a. 

Section 76.131 also issued under 48 U.S.C. 

1469a. 

Section 76.132 also issued under 48 U.S.C. 

1469a. 

Section 76.134 also issued under 48 U.S.C. 

1469a. 


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Section 76.136 also issued under 48 U.S.C. 

1469a. 

Section 76.140 also issued under 20 U.S.C. 

1221e–3, 1231g(a), and 3474. 

Section 76.301 also issued under 1221e–3, 

3474, and 7846(b). 

Section 76.401 also issued under 20 U.S.C. 

1221e–3, 1231b–2, and 3474. 

Section 76.709 also issued under 20 U.S.C. 

1221e–3, 1225(b), and 3474. 

Section 76.710 also issued under 20 U.S.C. 

1221e–3, 1225(b), and 3474. 

Section 76.720 also issued under 20 U.S.C. 

1221e–3, 1231a, and 3474. 

Section 76.740 also issued under 20 U.S.C. 

1221e–3, 1232g, 1232h, and 3474. 

Section 76.783 also issued under 20 U.S.C. 

1231b–2. 

Section 76.785 also issued under 20 U.S.C. 

7221e. 

Section 76.786 also issued under 20 U.S.C. 

7221e 

Section 76.787 also issued under 20 U.S.C. 

7221e. 

Section 76.788 also issued under 20 U.S.C. 

7221e. 

Section 76.901 also issued under 20 U.S.C. 

1234. 

■ 96. The part heading for part 76 is 

revised to read as set forth above. 

§ 76.1 [Amended] 

■ 97. Revise § 76.1 to read as follows: 

§ 76.1 Programs to which this part applies. 

(a) The regulations in this part apply 

to each State-administered formula 

grant program of the Department. 

(b) If a State-administered formula 

grant program does not have 

implementing regulations, the Secretary 

implements the program under the 

applicable statutes and, to the extent 

consistent with the authorizing statute, 

under the GEPA and the regulations in 

this part. For the purposes of this part, 

the term State-administered formula 

grant program means a program whose 

applicable statutes or implementing 

regulations provide a formula for 

allocating program funds among eligible 

States. 

§ 76.2 [Amended] 

■ 98. Amend § 76.2 by removing the 

parenthetical authority citation at the 

end of the section. 

■ 99. Revise § 76.50 to read as follows: 

§ 76.50 Basic requirements for subgrants. 

(a) Under a program covered by this 

part, the Secretary makes a grant— 

(1) To the State agency designated by 

applicable statutes and regulations for 

the program; or 

(2) To the State agency designated by 

the State in accordance with applicable 

statutes and regulations. 

(b) Unless prohibited by applicable 

statutes or regulations or by the terms 

and conditions of the grant award, a 

State may use State-administered 

formula grant funds— 

(1) Directly; 

(2) To make subgrants to eligible 

applicants; or 

(3) To authorize a subgrantee to make 

subgrants. 

(c) Grantees are responsible for 

monitoring subgrantees consistent with 

2 CFR 200.332. 

(d) Grantees, in cases where subgrants 

are prohibited by applicable statutes or 

regulations or the conditions of a grant 

award, are authorized to contract, as 

needed, for supplies, equipment, and 

other services, in accordance with 2 

CFR part 200, subpart D (2 CFR 200.317 

through 200.326). 

§ 76.51 [Amended] 

■ 100. Amend § 76.51 by: 

■ a. In the introductory text, removing 

the words ‘‘a program statute 

authorizes’’ and adding in their place 

‘‘applicable statutes and regulations 

authorize’’; and 

■ b. Removing the parenthetical citation 

authority at the end of the section. 

§ 76.52 [Amended] 

■ 101. Amend § 76.52 by: 

■ a. In paragraphs (a)(3) and (4), (b), 

(c)(1), and (d)(1) and (2), removing the 

words ‘‘State-Administered Formula 

Grant’’ and adding in their place ‘‘Stateadministered formula grant’’; and 

■ b. In paragraph (e), adding the word 

‘‘Federal’’ between the words ‘‘indirect’’ 

and ‘‘financial assistance’’. 

§ 76.100 [Amended] 

■ 102. Amend § 76.100 by removing the 

words ‘‘the authorizing statute and 

implementing regulations’’ and adding 

in their place the words ‘‘applicable 

statutes and regulations’’. 

■ 103. Revise § 76.101 to read as 

follows: 

§ 76.101 State plans in general. 

(a) Except as provided in paragraph 

(b) of this section, a State that makes 

subgrants to local educational agencies 

under a program subject to this part 

must have on file with the Secretary a 

State plan that meets the requirements 

of section 441 of GEPA (20 U.S.C. 

1232d). 

(b) The requirements of section 441 of 

GEPA do not apply to a State plan 

submitted for a program under the 

Elementary and Secondary Education 

Act of 1965. 

■ 104. Revise § 76.102 to read as 

follows: 

§ 76.102 Definition of ‘‘State plan’’ for this 

part. 

As used in this part, State plan means 

any document that applicable statutes 

and regulations for a State-administered 

formula grant program require a State to 

submit in order to receive funds for the 

program. To the extent that any 

provision of this part conflicts with 

program-specific implementing 

regulations related to the plan, the 

program-specific implementing 

regulations govern. 

■ 105. Revise § 76.103 to read as 

follows: 

§ 76.103 Multiyear State plans. 

Unless otherwise specified by statute, 

regulations, or the Secretary, each State 

plan is effective for a period of more 

than one fiscal year, to be determined by 

the Secretary or by regulations. 

§ 76.125 [Amended] 

■ 106. Amend § 76.125 by: 

■ a. In paragraph (b), removing ‘‘the 

Trust Territory of the Pacific Islands,’’; 

■ b. In paragraph (c), adding ‘‘, 

consistent with applicable law’’ after the 

word ‘‘Department’’; and 

■ c. Removing the parenthetical 

authority citation at the end of the 

section. 

§ 76.127 [Amended] 

■ 107. Amend § 76.127 by: 

■ a. In the introductory text, removing 

the words ‘‘of the programs listed in 

§ 76.125(c)’’ and adding in their place 

the words ‘‘State-administered formula 

grant programs’’; and 

■ b. Removing the parenthetical 

authority citation at the end of the 

section. 

■ 108. Amend § 76.128 by: 

■ a. Removing the words ‘‘of the 

programs listed in § 76.125(c)’’ and 

adding in their place the words ‘‘Stateadministered formula grant programs’’; 

■ b. Revising the example at the end of 

the section; and 

■ c. Removing the parenthetical 

authority citation at the end of the 

section. 

The revision reads as follows: 

§ 76.128 What is a consolidated grant? 

* * * * * 

Example 1 to § 76.128. Assume the 

Virgin Islands applies for a consolidated 

grant that includes funds under the Carl 

D. Perkins Career and Technical 

Education Act of 2006 and title I, part 

A; title II, part A; and title IV, part A of 

the Elementary and Secondary 

Education Act of 1965. If the Virgin 

Islands’ allocation under the formula for 

each of these four programs is $150,000, 

the total consolidated grant to the Virgin 

Islands would be $600,000. 

■ 109. Amend § 76.129 by: 

■ a. Revising the example after 

paragraph (a) and the example after 

paragraph (b). 


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■ b. Removing the parenthetical 

authority citation at the end of the 

section. 

The revisions read as follows: 

§ 76.129 How does a consolidated grant 

work? 

(a) * * * 

Example 1 to paragraph (a). Assume 

that Guam receives, under the 

consolidated grant, funds from Carl D. 

Perkins Career and Technical Education 

Act of 2006, Title I, part A of the ESEA, 

and Title IV, part A of the ESEA. The 

sum of the allocations under these 

programs is $600,000. Guam may 

choose to allocate this $600,000 among 

one, two, or all three of the programs. 

(b) * * * 

Example 2 to paragraph (b). Assume 

that American Samoa uses part of the 

funds under a consolidated grant to 

carry out programs and activities under 

Title IV, part A of the ESEA. American 

Samoa need not submit to the Secretary 

a State plan that addresses the 

program’s application requirement that 

the State educational agency describe 

how it will use funds for State-level 

activities. However, in carrying out the 

program, American Samoa must use the 

required amount of funds for State-level 

activities under the program. 

§ 76.130 [Amended] 

■ 110. Amend § 76.130 by: 

■ a. Removing in paragraph (d) the 

words ‘‘statute and regulations for that 

program’’ and adding in their place the 

words ‘‘statutes and regulations that 

apply to that program’’; and 

■ b. Removing the parenthetical 

authority citation at the end of the 

section. 

§ 76.131 [Amended] 

■ 111. Amend § 76.131 by: 

■ a. In paragraph (a), removing the 

words ‘‘programs listed in § 76.125(c)’’ 

and adding in their place the words 

‘‘State-administered formula grant 

programs’’; 

■ b. In paragraph (b), removing the 

words ‘‘the authorizing statutes and 

regulations’’ and adding in their place 

the words ‘‘applicable statutes and 

regulations’’; 

■ c. In paragraph (c)(1), removing the 

words ‘‘programs in § 76.125(c)’’ and 

adding in their place the words ‘‘Stateadministered formula grant programs’’; 

■ c. In paragraph (c)(2), removing the 

words ‘‘program or programs in 

§ 76.125(c)’’ and adding in their place 

the words ‘‘State-administered formula 

grant programs’’; and 

■ d. Removing the parenthetical 

authority citation at the end of the 

section. 

§ 76.132 [Amended] 

■ 112. Amend § 76.132 by: 

■ a. In paragraphs (a)(2),removing the 

word ‘‘authorizing’’ and adding in its 

place the word ‘‘applicable’’; 

■ b. In paragraph (a)(4), removing the 

word ‘‘assure’’ and adding in its place 

the word ‘‘ensure’’; 

■ c. In paragraph (a)(5), removing the 

phrase ‘‘2 CFR 200.327 and 200.328’’ 

and adding in its place ‘‘2 CFR 200.328 

and 200.329’’; 

■ d. In paragraph (a)(9),removing the 

word ‘‘authorizing’’ and adding in its 

place the word ‘‘applicable’’; and 

■ e. Removing the parenthetical 

authority citation at the end of the 

section. 

■ 113. Amend § 76.134 by: 

■ a. Revising paragraph (a); 

■ b. In paragraph (b), removing the 

words ‘‘the program statute’’ and adding 

in their place the words ‘‘applicable 

statutes’’; and 

■ c. Removing the parenthetical 

authority citation at the end of the 

section. 

The revision reads as follows: 

§ 76.134 What is the relationship between 

consolidated and non-consolidated grants? 

(a) An Insular Area may request that 

any State-administered formula grant 

programs be included in its 

consolidated grant and may apply 

separately for assistance under any 

other of those programs for which it is 

eligible. 

* * * * * 

§ 76.136 [Amended] 

■ 114. Amend § 76.136 by: 

■ a. Removing the words ‘‘programs 

described in § 76.125(c)’’ and adding in 

their place the words ‘‘Stateadministered formula grant programs’’; 

and 

■ b. Removing the parenthetical 

authority citation at the end of the 

section. 

■ 115. Revise § 76.140 to read as 

follows: 

§ 76.140 Amendments to a State plan. 

(a) If the Secretary determines that an 

amendment to a State plan is essential 

during the effective period of the plan, 

the State must make the amendment. 

(b) A State must also amend a State 

plan if there is a significant and relevant 

change in the information or the 

assurances in the plan. 

(c) If a State amends a State plan, to 

the extent consistent with applicable 

law, the State must use the same 

procedures as those it must use to 

prepare and submit a State plan, unless 

the Secretary prescribes different 

procedures based on the characteristics 

of a particular State-administered 

formula grant program. 

§§ 76.141 and 76.142 [Removed and 

Reserved] 

■ 116. Remove and reserve §§ 76.141 

and 76.142. 

§ 76.260 [Amended] 

■ 117. Amend § 76.260 by: 

■ a. In the section heading, removing 

the words ‘‘program statute’’ and adding 

in their place the words ‘‘applicable 

statutes’’. 

■ b. Removing the words ‘‘the 

authorizing statute’’ wherever they 

appear and adding in their place the 

words ‘‘applicable statutes’’. 

■ 118. Revise § 76.301 to read as 

follows: 

§ 76.301 Local educational agency 

application in general. 

(a) A local educational agency (LEA) 

that applies for a subgrant under a 

program subject to this part must have 

on file with the State an application that 

meets the requirements of section 442 of 

GEPA (20 U.S.C. 1232e). 

(b) The requirements of section 442 of 

GEPA do not apply to an LEA’s 

application for a program under the 

ESEA. 

§ 76.400 [Amended] 

■ 119. Amend § 76.400 in paragraphs 

(b)(2), (c)(2), and (d) by removing the 

words ‘‘Federal statutes’’ and adding in 

their place the words ‘‘applicable 

statutes’’. 

■ 120. Revise § 76.401 to read as 

follows: 

§ 76.401 Disapproval of an application— 

opportunity for a hearing. 

(a) State educational agency hearing 

regarding disapproval of an application. 

When financial assistance is provided to 

(or through) a State educational agency 

(SEA) consistent with an approved State 

plan and the SEA takes final action by 

disapproving or failing to approve an 

application for a subgrant in whole or in 

part, the SEA must provide the 

aggrieved applicant with notice and an 

opportunity for a hearing regarding the 

SEA’s disapproval or failure to approve 

the application. 

(b) Applicant request for SEA hearing. 

(1) The aggrieved applicant must 

request a hearing within 30 days of the 

final action of the SEA. 

(2) The aggrieved applicant’s request 

for a hearing must include, at a 

minimum, a citation to the specific State 

or Federal statute, rule, regulation, or 

guideline that the SEA allegedly 

violated when disapproving or failing to 

approve the application in whole or in 

part and a brief description of the 

alleged violation. 


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(3) The SEA must make available, at 

reasonable times and places to each 

applicant, all records of the SEA 

pertaining to the SEA’s failure to 

approve the application in whole or in 

part that is the subject of the applicant’s 

request for a hearing under this 

paragraph (b). 

(c) SEA hearing procedures. (1) 

Within 30 days after it receives a request 

that meets the requirements of 

paragraphs (b)(1) and (2) of this section, 

the SEA must hold a hearing on the 

record to review its action. 

(2) No later than 10 days after the 

hearing, the SEA must issue its written 

ruling, including findings of fact and 

reasons for the ruling. 

(3) If the SEA determines that its 

action was contrary to State or Federal 

statutes, rules, regulations, or guidelines 

that govern the applicable program, the 

SEA must rescind its action in whole or 

in part. 

(d) Procedures for appeal of SEA 

action to the Secretary. (1) If an SEA 

does not rescind its final action 

disapproving or failing to approve an 

application in whole or in part after the 

SEA conducts a hearing consistent with 

paragraph (c) of this section, the 

applicant may appeal the SEA’s final 

action to the Secretary. 

(2) The applicant must file a notice of 

appeal with the Secretary within 20 

days after the applicant has received the 

SEA’s written ruling. 

(3) The applicant’s notice of appeal 

must include, at a minimum, a citation 

to the specific Federal statute, rule, 

regulation, or guideline that the SEA 

allegedly violated and a brief 

description of the alleged violation. 

(4) The Secretary may issue interim 

orders at any time when considering the 

appeal, including requesting the hearing 

record and any additional 

documentation, such as additional 

documentation regarding the 

information provided pursuant to 

paragraph (d)(3) of this section. 

(5) After considering the appeal, the 

Secretary issues an order either 

affirming the final action of the SEA or 

requiring the SEA to take appropriate 

action, if the Secretary determines that 

the final action of the SEA was contrary 

to a Federal statute, rule, regulation, or 

guideline that governs the applicable 

program. 

(e) Programs administered by State 

agencies other than an SEA. Under 

programs with an approved State plan 

under which financial assistance is 

provided to (or through) a State agency 

that is not the SEA, that State agency is 

not required to comply with this section 

unless specifically required to do so by 

Federal statute or regulation. 

■ 121. Amend § 76.500 by revising 

paragraph (a) and removing the 

parenthetical authority citation at the 

end of the section. 

The revision reads as follows: 

§ 76.500 Federal statutes and regulations 

on nondiscrimination. 

(a) A State and a subgrantee must 

comply with the following statutes and 

regulations: 

TABLE 1 TO § 76.500(a) 

Subject Statute Regulation 

Discrimination on the basis of race, color, or national origin.Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et 

seq.).

34 CFR part 100. 

Discrimination on the basis of sex ..................................... Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 

et seq.).

34 CFR part 106. 

Discrimination on the basis of disability ............................. Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) ... 34 CFR part 104. 

Discrimination on the basis of age ..................................... Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.) ........... 34 CFR part 110. 

* * * * * 

§ 76.532 [Amended] 

■ 122. Amend § 76.532 by removing the 

parenthetical authority citation at the 

end of the section. 

§ 76.533 [Amended] 

■ 123. Amend § 76.533 by: 

■ a. Removing the words ‘‘the 

authorizing statute’’ and adding in their 

place the words ‘‘applicable statutes’’; 

and 

■ b. Removing the parenthetical 

authority citation at the end of the 

section. 

■ 124. Revise § 76.560 to read as 

follows: 

§ 76.560 General indirect cost rates and 

cost allocation plans; exceptions. 

(a) The differences between direct and 

indirect costs and the principles for 

determining the general indirect cost 

rate that a grantee may use for grants 

under most programs are specified in 

the cost principles for— 

(1) All grantees, other than hospitals 

and commercial (for-profit) 

organizations, at 2 CFR part 200, subpart 

E; 

(2) Hospitals, at 45 CFR part 75, 

appendix IX; and 

(3) Commercial (for-profit) 

organizations, at 48 CFR part 31. 

(b) Except as specified in paragraph 

(c) of this section, a grantee must have 

a current indirect cost rate agreement or 

approved cost allocation plan to charge 

indirect costs to a grant. To obtain a 

negotiated indirect cost rate agreement 

or approved cost allocation plan, a 

grantee must submit an indirect cost 

rate proposal or cost allocation plan to 

its cognizant agency. 

(c) A grantee that meets the 

requirements in 2 CFR 200.414(f) may 

elect to charge the de minimis rate of 

modified total direct costs (MTDC) 

specified in that provision, which may 

be used indefinitely. The de minimis 

rate may not be used on programs that 

have statutory or regulatory restrictions 

on the indirect cost rate. No 

documentation is required to justify the 

de minimis rate. 

(1) If the grantee has established a 

threshold for equipment that is lower 

than the amount specified in the 

Uniform Guidance, the grantee must use 

that threshold to exclude equipment 

from the MTDC base. 

(2) For purposes of the MTDC base 

and application of the 10 percent rate, 

MTDC includes up to the amount 

specified in the definition of MTDC in 

the Uniform Guidance of each 

subaward, each year. 

(d) If a grantee is required to, but does 

not, have a federally recognized indirect 

cost rate or approved cost allocation 

plan, the Secretary may permit the 

grantee to charge a temporary indirect 

cost rate of 10 percent of budgeted 

direct salaries and wages. 

(e)(1) If a grantee fails to submit an 

indirect cost rate proposal or cost 

allocation plan to its cognizant agency 

within the required 90 days, the grantee 

may not charge indirect costs to its grant 

from the end of the 90-day period until 

it obtains a federally recognized indirect 

cost rate agreement applicable to the 

grant. 

(2) If the Secretary determines that 

exceptional circumstances warrant 

continuation of a temporary indirect 

cost rate, the Secretary may authorize 


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the grantee to continue charging indirect 

costs to its grant at the temporary rate 

specified in paragraph (d) of this section 

even though the grantee has not 

submitted its indirect cost rate proposal 

within the 90-day period. 

(3) Once a grantee obtains a federally 

recognized indirect cost rate that is 

applicable to the affected grant, the 

grantee may use that indirect cost rate 

to claim indirect cost reimbursement for 

expenditures made on or after the date 

on which the grantee submitted its 

indirect cost proposal to its cognizant 

agency or the start of the project period, 

whichever is later. However, this 

authority is subject to the following 

limitations: 

(i) The total amount of funds 

recovered by the grantee under the 

federally recognized indirect cost rate is 

reduced by the amount of indirect costs 

previously recovered under the 

temporary indirect cost rate specified in 

paragraph (d) of this section. 

(ii) The grantee must obtain prior 

approval from the Secretary to shift 

direct costs to indirect costs in order to 

recover indirect costs at a higher 

negotiated indirect cost rate. 

(iii) The grantee may not request 

additional funds to recover indirect 

costs that it cannot recover by shifting 

direct costs to indirect costs. 

(f) The Secretary accepts a negotiated 

indirect cost rate or approved cost 

allocation plan but may establish a 

restricted indirect cost rate or cost 

allocation plan compliant with 

§§ 76.564 through 76.569 for a grantee to 

satisfy the statutory requirements of 

certain programs administered by the 

Department. 

■ 125. Revise § 76.561 to read as 

follows: 

§ 76.561 Approval of indirect cost rates 

and cost allocation plans. 

(a) If the Department of Education is 

the cognizant agency, the Secretary 

approves an indirect cost rate or cost 

allocation plan for a State agency and 

for a subgrantee other than a local 

educational agency. For the purposes of 

this section, the term ‘‘local educational 

agency’’ does not include a State 

agency. 

(b) Each State educational agency, on 

the basis of a plan approved by the 

Secretary, shall approve an indirect cost 

rate for each local educational agency 

that requests it to do so. 

(c) The Secretary generally approves 

indirect cost rate agreements annually. 

Indirect cost rate agreements may be 

approved for periods longer than a year 

if the Secretary determines that rates 

will be sufficiently stable to justify a 

longer rate period. 

■ 126. Add § 76.562 to read as follows: 

§ 76.562 Reimbursement of indirect costs. 

(a) Reimbursement of indirect costs is 

subject to the availability of funds and 

statutory or administrative restrictions. 

(b) The application of the negotiated 

indirect cost rate (determination of the 

direct cost base) or cost allocation plan 

(charging methodology) must be in 

accordance with the agreement/plan 

approved by the grantee’s cognizant 

agency. 

(c) Indirect costs for joint applications 

and projects (see § 76.303) are limited to 

the amount derived by applying the rate 

of the applicant, or a restricted rate 

when applicable, to the direct cost base 

for the grant in keeping with the terms 

of the applicant’s federally recognized 

indirect cost rate agreement and 

program requirements. 

§ 76.563 [Amended] 

■ 127. Amend § 76.563 by: 

■ a. Removing the words ‘‘agencies of 

State and local governments that are 

grantees under’’; 

■ b. Removing the words ‘‘their 

subgrantees’’ and adding in their place 

the word ‘‘subgrants’’; and 

■ c. Removing the parenthetical 

authority citation at the end of the 

section. 

■ 128. Revise § 76.654 to read as 

follows: 

§ 76.564 Restricted indirect cost rate 

formula. 

(a) An indirect cost rate for a grant 

covered by §§ 76.563 or 75.563 is 

determined by the following formula: 

Restricted indirect cost rate = (General 

management costs + Fixed costs) ÷ 

(Other expenditures). 

(b) General management costs, fixed 

costs, and other expenditures must be 

determined under §§ 76.565 through 

76.567. 

(c) Under the programs covered by 

§ 76.563, a grantee or subgrantee that is 

not a State or local government 

agency— 

(1) Shall use a negotiated restricted 

indirect cost rate computed under 

paragraph (a) of this section or cost 

allocation plan that complies with the 

formula in paragraph (a) of this section; 

or 

(2) May elect to use an indirect cost 

rate of 8 percent of the modified total 

direct costs (MTDC) base if the grantee 

or subgrantee does not have a negotiated 

restricted indirect cost rate. MTDC is 

defined in 2 CFR 200.1. If the Secretary 

determines that the grantee or 

subgrantee would have a lower rate as 

calculated under paragraph (a) of this 

section, the lower rate shall be used for 

the affected program. 

(3) If the grantee has established a 

threshold for equipment that is lower 

than the amount specified in the 

Uniform Guidance, the grantee must use 

that threshold to exclude equipment 

from the MTDC base. 

(4) For purposes of the MTDC base 

and application of the 8 percent rate, 

MTDC includes up to the amount 

specified in the definition of MTDC in 

the Uniform Guidance of each 

subaward, each year. 

(d) Indirect costs that are unrecovered 

as a result of these restrictions may not 

be charged directly, used to satisfy 

matching or cost-sharing requirements, 

or charged to another Federal award. 

§ 76.565 [Amended] 

■ 129. Amend § 76.565 by removing the 

parenthetical authority citation at the 

end of the section. 

§ 76.566 [Amended] 

■ 130. Amend § 76.566 by: 

■ a. In the introductory text, adding the 

word ‘‘allowable’’ before the words 

‘‘indirect costs’’; and 

■ b. Removing the parenthetical 

authority citation at the end of the 

section. 

■ 131. Amend § 76.567 by: 

■ a. Revising paragraph (b)(3); 

■ b. In paragraph (b)(7), removing the 

punctuation and word ‘‘; and’’; 

■ c. Redesignating paragraph (b)(8) as 

paragraph (b)(9); 

■ d. Adding a new paragraph (b)(8); and 

■ e. Removing the parenthetical 

authority citation at the end of the 

section. 

The revision and addition read as 

follows: 

§ 76.567 Other expenditures—restricted 

rate. 

* * * * * 

(b) * * * 

(3) Subawards exceeding the amount 

specified in the definition of Modified 

Total Direct Cost in the Uniform 

Guidance each, per year; 

* * * * * 

(8) Other distorting items; and 

* * * * * 

§ 76.568 [Amended] 

■ 132. Amend § 76.568 by: 

■ a. In paragraph (c), adding the word 

‘‘(denominator)’’ after the word 

‘‘expenditures’’; and 

■ b. Removing the parenthetical 

authority citation at the end of the 

section. 

■ 133. Amend § 76.569 by: 

■ a. Revising paragraph (a) and 

removing the parenthetical authority 

citation at the end of the section. 

The revision reads as follows: 


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§ 76.569 Using the restricted indirect cost 

rate. 

(a) Under the programs referenced in 

§§ 75.563 and 76.563, the maximum 

amount of indirect costs recovery under 

a grant is determined by the following 

formula: 

Indirect costs = (Restricted indirect cost 

rate) × (Total direct costs of the 

grant minus capital outlays, 

subawards exceeding amount 

specified in the definition of 

Modified Total Direct Cost in the 

Uniform Guidance each, per year, 

and other distorting or unallowable 

items as specified in the grantee’s 

indirect cost rate agreement) 

* * * * * 

§ 76.580 [Amended] 

■ 134. Amend § 76.580 by removing the 

parenthetical authority citation at the 

end of the section. 

■ 135. Revise § 76.600 to read as 

follows: 

§ 76.600 Where to find the construction 

regulations. 

(a) A State or a subgrantee that 

requests program funds for construction, 

or whose grant or subgrant includes 

funds for construction, must comply 

with the rules on construction that 

apply to applicants and grantees under 

34 CFR 75.600 through 75.618. 

(b) The State must perform the 

functions of the Secretary for subgrantee 

requests under 34 CFR 75.601 (Approval 

of the construction). 

(c) The State must perform the 

functions that the Secretary performs 

under 34 CFR 75.614(b). The State may 

consult with the State Historic 

Preservation Officer and Tribal Historic 

Preservation Officer to identify and 

evaluate historic properties and assess 

effects. The Secretary will continue to 

participate in the consultation process 

when: 

(1) The State determines that ‘‘Criteria 

of Adverse Effect’’ applies to a project; 

(2) There is a disagreement between 

the State and the State Historic 

Preservation Officer or Tribal Historic 

Preservation Officer regarding 

identification and evaluation or 

assessment of effects; 

(3) There is an objection from 

consulting parties or the public 

regarding findings, determinations, the 

implementation of agreed-upon 

provisions, or their involvement in a 

National Historic Preservation Act 

Section 106 review (see 36 CFR part 

800); or 

(4) There is the potential for a 

foreclosure situation or anticipatory 

demolition as specified in Section 

110(k) of the National Historic 

Preservation Act (see 36 CFR part 800). 

(d) The State must provide to the 

Secretary the information required 

under 34 CFR 75.614(a) (Preservation of 

historic sites). 

(e) The State must submit periodic 

reports to the Secretary regarding the 

State’s review and approval of 

construction or real property projects 

containing information specified by the 

Secretary consistent with 2 CFR 

200.329(d). 

■ 136–137. Revise the undesignated 

center heading before § 76.650 and 

revise § 76.650 to read as follows: 

Participation of Private School 

Children, Teachers or Other 

Educational Personnel, and Families 

§ 76.650 Participation of private school 

children, teachers or other educational 

personnel, and families. 

If a program provides for participation 

by private school children, teachers or 

other educational personnel, and 

families, and the program is not 

otherwise governed by applicable 

regulations, the grantee or subgrantee 

must provide, as applicable, services in 

accordance with the requirements under 

§§ 299.7 through 299.11. 

§§ 76.651 through 76.662 [Removed and 

Reserved] 

■ 138. Remove and reserve §§ 76.651 

through 76.662. 

§ 76.665 [Removed and Reserved] 

■ 139. Remove the undesignated center 

heading ‘‘Equitable Services under the 

CARES Act’’ above § 76.665 and remove 

and reserve § 76.665. 

§§ 76.670 through 76.677 [Removed and 

Reserved] 

■ 140. Remove the undesignated section 

heading ‘‘Procedures for Bypass’’ above 

§ 76.670 and remove and reserve 

§§ 76.670 through 76.677. 

§ 76.682 [Amended] 

■ 141. Amend § 76.682 by removing the 

parenthetical authority citation at the 

end of the section. 

§ 76.702 [Amended] 

■ 142. Amend § 76.702 removing the 

word ‘‘insure’’ and adding in its place 

the word ‘‘ensure’’. 

■ 143. Amend § 76.707 by revising 

paragraph (h) and removing the 

parenthetical authority citation at the 

end of the section. 

The revision reads as follows: 

§ 76.707 When obligations are made. 

* * * * * 

If the obligation is for— The obligation is made— 

*******

(h) A pre-agreement cost that was properly approved by the Secretary 

under the cost principles in 2 CFR part 200, subpart E.

On the first day of the grant or subgrant period of performance. 

§ 76.708 [Amended] 

■ 144. Amend § 76.708 by: 

■ a. In paragraph (a) introductory text, 

removing the words ‘‘the authorizing 

statute’’ and adding in their place the 

words ‘‘applicable statutes and 

regulations’’, removing the word 

‘‘requires’’ and adding in its place the 

word ‘‘require’’, and removing the 

words ‘‘(see § 76.5)’’ and adding, in their 

place, the words ‘‘(see § 76.51(a))’’; 

■ b. In paragraph (c), removing the 

words ‘‘the authorizing statute’’ and 

adding in their place the words 

‘‘applicable statutes and regulations’’ 

and removing the word ‘‘gives’’ and 

adding in its place the word ‘‘give’’; and 

■ c. Removing the parenthetical 

authority citation at the end of the 

section. 

§ 76.709 [Amended] 

■ 145. Amend § 76.709 by removing the 

Note and the parenthetical authority 

citation at the end of the section. 

§ 76.710 [Amended] 

■ 146. Amend § 76.710 by removing the 

Note and the parenthetical authority 

citation at the end of the section. 

§ 76.711 [Amended] 

■ 147. Amend § 76.711 by: 

■ a. In the section heading, removing 

the abbreviation ‘‘CFDA’’ and adding in 

its place the abbreviation ‘‘ALN’’; and 

■ b. Removing the phrase ‘‘Catalog of 

Federal Domestic Assistance (CFDA)’’ 

and adding in its place the phrase 

‘‘Assistance Listing Number (ALN)’’. 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 89, No. 8 / Thursday, January 11, 2024 / Proposed Rules 2025 

§ 76.714 [Amended] 

■ 148. Amend § 76.714 by adding ‘‘, as 

defined in § 76.52(c)(3),’’ after ‘‘Federal 

financial assistance’’. 

§ 76.720 [Amended] 

■ 149. Amend § 76.720 by: 

■ a. In paragraph (a), removing the 

citation ‘‘2 CFR 200.327’’ and adding in 

its place the citation ‘‘2 CFR 200.328’’, 

removing the citation ‘‘2 CFR 200.328’’ 

and adding, in its place, the citation ‘‘2 

CFR 200.329’’, and removing the words 

‘‘the Paperwork Reduction Act of 1995, 

44 U.S.C. 3501–3520’’ and adding, in 

their place, the words ‘‘Subchapter 1 of 

Chapter 35 (sections 3501–3521) of Title 

44, U.S. Code, commonly known as the 

‘‘Paperwork Reduction Act’’ ’’; 

■ b. In paragraph (c)(2), removing the 

words ‘‘the General Education 

Provisions Act’’ and adding, in their 

place, the word ‘‘GEPA’’; and 

■ c. Removing the parenthetical 

authority citation at the end of the 

section. 

■ 150. Amend § 76.740 by: 

■ a. In paragraph (a), removing the 

number ‘‘438’’ and adding in its place 

the number ‘‘444’’ in the first sentence 

and revising the parenthetical sentence 

at the end; 

■ b. In paragraph (b), removing the 

number ‘‘439’’ and adding in its place 

the number ‘‘445’’; and adding the 

words ‘‘(20 U.S.C. 1232h; commonly 

known as the ‘‘Protection of Pupil 

Rights Amendment’’ or ‘‘PPRA’’)’’ after 

the words ‘‘of GEPA’’; and 

■ c. Removing the parenthetical 

authority citation at the end of the 

section. 

The revision reads as follows: 

§ 76.740 Protection of and access to 

student records; student rights in research, 

experimental programs, and testing. 

(a) * * * (Section 444 of GEPA (20 

U.S.C. 1232g) is commonly referred to 

as the ‘‘Family Educational Rights and 

Privacy Act of 1974’’ or ‘‘FERPA’’.) 

* * * * * 

§ 76.761 [Amended] 

■ 151. Amend § 76.761 in paragraph (b) 

by removing the words ‘‘the authorizing 

statute and implementing regulations 

for the program’’ and adding in their 

place the words ‘‘applicable statutes and 

regulations’’. 

■ 152. Amend § 76.783 by: 

■ a. In paragraph (a)(1), removing the 

word ‘‘or’’ ’ 

■ b. In paragraph (a)(2), removing the 

period and adding in its place ‘‘; or’’; 

■ c. Adding paragraph (a)(3); 

■ d. Removing the citation 

‘‘76.401(d)(2)–(7)’’ in paragraph (b) and 

adding in its place the citation 

‘‘76.401(a) through (d)’’; and 

■ e. Removing the Note and 

parenthetical authority citation at the 

end of the section. 

The addition reads as follows: 

§ 76.783 State educational agency action— 

subgrantee’s opportunity for a hearing. 

(a) * * * 

(3) Failing to provide funds in 

amounts in accordance with the 

requirements of applicable statutes and 

regulations. 

* * * * * 

§ 76.785 [Amended] 

■ 153. Amend § 76.785 by: 

■ a. Removing the words ‘‘section 

10306’’ and adding in their place the 

words ‘‘section 4306’’; and 

■ b. Removing the parenthetical 

authority citation at the end of the 

section. 

§ 76.786 [Amended] 

■ 154. Amend § 76.786 by: 

■ a. In paragraph (a), removing the 

words ‘‘Public Charter Schools 

Program’’ and adding in their place the 

words ‘‘Charter School State Entity 

Grant Program’’; and 

■ b. Removing the parenthetical 

authority citation at the end of the 

section. 

§ 76.787 [Amended] 

■ 155. Amend § 76.787 by: 

■ a. In the definition of ‘‘charter 

school,’’ removing the words ‘‘title X, 

part C of the ESEA’’ and adding in their 

place the words ‘‘section 4310(2) of the 

ESEA (20 U.S.C. 7221i(2))’’; 

■ b. In the definition of ‘‘covered 

program,’’ removing the words ‘‘an 

elementary or secondary education 

program administered by the 

Department under which the Secretary 

allocates funds to States on a formula 

basis’’ and adding in their place the 

words ‘‘a State-administered formula 

grant program’’; 

■ c. In the definition of ‘‘local 

educational agency,’’ removing the 

words ‘‘the authorizing statute’’ and 

adding in their place the words 

‘‘applicable statutes and regulations’’; 

and 

■ d. Removing the parenthetical 

authority citation at the end of the 

section. 

■ 156. Revise the undesignated center 

heading before § 76.788 to read 

‘‘Responsibilities for Notice and 

Information’’. 

§ 76.788 [Amended] 

■ 157. Amend § 76.788 by: 

■ a. In paragraph (c), removing the 

words ‘‘the authorizing statute or 

implementing regulations for the 

applicable covered program’’ and 

adding in their place the words 

‘‘applicable statutes or regulations’’; and 

■ b. Removing the parenthetical 

authority citation at the end of the 

section. 

§ 76.900 [Amended] 

■ 158. Amend § 76.900 by removing 

‘‘ED’’ in paragraphs (a) and (b) and 

adding in its place the words ‘‘the 

Department’’. 

§ 76.901 [Amended] 

■ 159. Amend § 76.901 by: 

■ a. In paragraph (a) introductory text, 

removing the words ‘‘Part E’’ and 

adding in their place the words ‘‘Part D 

(20 U.S.C. 1234–1234h)’’; and 

■ b. Removing the parenthetical 

authority citation at the end of the 

section. 

PART 77—DEFINITIONS THAT APPLY 

TO DEPARTMENT REGULATIONS 

■ 160. The authority citation for part 77 

continues to read as follows: 

Authority: 20 U.S.C. 1221e–3 and 3474, 

unless otherwise noted. 

■ 161. Amend § 77.1 by: 

■ a. Revising paragraph (b); and 

■ b. In paragraph (c): 

■ i. In the definition of ‘‘Applicant’’ 

removing the word ‘‘requesting’’ and 

adding in its place the words ‘‘applying 

for’’; 

■ ii. In the definition of ‘‘Award’’ 

removing the words ‘‘the definition of’’; 

■ iii. In the definition of ‘‘Budget’’ 

removing the words ‘‘that recipient’s’’ 

and adding in their place ‘‘a 

recipient’s’’; 

■ iv. Adding in alphabetical order a 

definition for ‘‘construction’’; 

■ v. Revising the definition of 

‘‘Demonstrates a rationale’’; 

■ vi. Removing the definitions of 

‘‘Direct grant program’’ and ‘‘Director of 

the Institute of Museum Services’’; 

■ vii. Revising the definition of 

‘‘Director of the National Institute of 

Education’’; 

■ viii. Adding in alphabetical order a 

definition for ‘‘Evaluation’’; 

■ ix. In the definition of ‘‘Evidencebased’’ adding ‘‘, for the purposes of 34 

CFR part 75,’’ after the word ‘‘Evidencebased’’; 

■ x. Adding in alphabetical order a 

definition for ‘‘Evidence-building’’; 

■ xi. In the definition of ‘‘GEPA’’ 

removing the word ‘‘The’’ and adding in 

its place the word ‘‘the’’; 

■ xii. Adding in alphabetical order 

definitions for ‘‘independent 

evaluation’’; 

■ xiii. Revising the definitions of 

‘‘minor remodeling’’, ‘‘Moderate 

evidence’’, and ‘‘National level’’; 


ddrumheller on DSK120RN23PROD with PROPOSALS2
2026 Federal Register / Vol. 89, No. 8 / Thursday, January 11, 2024 / Proposed Rules 

■ xiv. Adding in alphabetical order a 

definition for ‘‘peer-reviewed scholarly 

publication’’; 

■ xv. In the definition of ‘‘Project 

period’’ removing the citation ‘‘2 CFR 

200.77’’ and adding in its place the 

citation ‘‘2 CFR 200.1’’; 

■ xvi. Revising the definition of 

‘‘Promising evidence’’; 

■ xvii. Adding in alphabetical order a 

definition for ‘‘quality data’’; 

■ xviii. Revising the definitions of 

‘‘Regional level’’, ‘‘State’’, and ‘‘Strong 

evidence’’; 

■ xix. In the definition of ‘‘Subgrant’’ 

removing the words ‘‘definition of 

‘‘grant or award’’ ’’ and adding in their 

place the words ‘‘definitions of ‘‘Grant’’ 

or ‘‘Award’’ ’’; 

■ xx. Revising the definition of ‘‘What 

Works Clearinghouse (WWC) 

Handbooks (WWC Handbooks)’’; and 

■ xxi. In the definition of ‘‘Work of art’’ 

removing the word ‘‘facilities’’ and 

adding it its place the words ‘‘a 

facility’’. 

The revisions and additions read as 

follows: 

§ 77.1 Definitions that apply to all 

Department programs. 

* * * * * 

(b) Unless a statute or regulation 

provides otherwise, the following 

definitions in 2 CFR part 200 apply to 

the regulations in subtitles A and B of 

this title. The following terms have the 

definitions given those terms in 2 CFR 

part 200.1. Phrasing given in 

parentheses references the term or terms 

used in title 34 that are consistent with 

the term defined in title 2. 

Contract 

Equipment 

Federal award (The terms ‘‘award,’’ 

‘‘grant,’’ and ‘‘subgrant’’, as defined in 

paragraph (c) of this section, have the 

same meaning, depending on the 

context, as ‘‘Federal award’’ in 2 CFR 

200.1.). 

Period of performance (For 

discretionary grants, ED uses the term 

‘‘project period,’’ as defined in 

paragraph (c) of this section, instead of 

‘‘period of performance,’’ to describe the 

period during which funds can be 

obligated by the grantee.). 

Personal property 

Real property 

Recipient 

Subaward (The term ‘‘subgrant,’’ as 

defined in paragraph (c) of this section, 

has the same meaning as ‘‘subaward’’ in 

2 CFR 200.1). 

Supplies 

(c) * * * 

Construction means 

(i)(A) the preparation of drawings and 

specifications for a facilities project; 

(B) erecting, building, demolishing, 

acquiring, renovating, major remodeling 

of, or extending a facilities project; or 

(C) inspecting and supervising the 

construction of a facilities project; 

(ii) Does not include minor 

remodeling. 

* * * * * 

Demonstrates a rationale means that 

there is a key project component 

included in the project’s logic model 

that is supported by citations of highquality research or evaluation findings 

that suggest that the project component 

is likely to significantly improve 

relevant outcomes. 

* * * * * 

Director of the Institute of Education 

Sciences means the Director of the 

Institute of Education Sciences or an 

officer or employee of the Institute of 

Education Sciences acting for the 

Director under a delegation of authority. 

* * * * * 

Evaluation means an assessment 

using systematic data collection and 

analysis of one or more programs, 

policies, practices, and organizations 

intended to assess their implementation, 

outcomes, effectiveness, or efficiency. 

Evidence-building means a systematic 

plan for identifying and answering 

questions relevant to programs and 

policies through performance 

measurement, exploratory studies, or 

program evaluation. 

* * * * * 

Independent evaluation means an 

evaluation of a project component that 

is designed and carried out 

independently of, but in coordination 

with, the entities that develop or 

implement the project component. 

* * * * * 

Minor remodeling means minor 

alterations in a previously completed 

facilities project. The term also includes 

the extension of utility lines, such as 

water and electricity, from points 

beyond the confines of the space in 

which the minor remodeling is 

undertaken but within the confines of 

the previously completed facility. The 

term may also include related designs 

and drawings for these projects. The 

term does not include construction or 

renovation, structural alterations to 

buildings, facilities maintenance, or 

repairs. 

Moderate evidence means evidence of 

effectiveness of a key project component 

in improving a relevant outcome for a 

sample that overlaps with the 

populations or settings proposed to 

receive that component, based on a 

relevant finding from one of the 

following: 

(i) A practice guide prepared by the 

WWC using version 2.1, 3.0, 4.0, 4.1, or 

5.0 of the WWC Handbooks reporting 

‘‘strong evidence’’ or ‘‘moderate 

evidence’’ for the corresponding 

practice guide recommendation; 

(ii) An intervention report prepared 

by the WWC using version 2.1, 3.0, 4.0, 

4.1, or 5.0 of the WWC Handbooks 

reporting ‘‘Tier 1 strong evidence’’ of 

effectiveness or ‘‘Tier 2 moderate 

evidence’’ of effectiveness or a ‘‘positive 

effect’’ on a relevant outcome based on 

a sample including at least 20 students 

or other individuals from more than one 

site (such as a State, county, city, local 

educational agency (LEA), school, or 

postsecondary campus), or a 

‘‘potentially positive effect’’ on a 

relevant outcome based on a sample 

including at least 350 students or other 

individuals from more than one site 

(such as a State, county, city, LEA, 

school, or postsecondary campus), with 

no reporting of a ‘‘negative effect’’ or 

‘‘potentially negative effect’’ on a 

relevant outcome; or 

(iii) A single experimental study or 

quasi-experimental design study 

reviewed and reported by the WWC 

most recently using version 2.1, 3.0, 4.0, 

4.1, or 5.0 of the WWC Handbooks, or 

otherwise assessed by the Department 

using version 5.0 of the WWC 

Handbook, as appropriate, and that— 

(A) Meets WWC standards with or 

without reservations; 

(B) Includes at least one statistically 

significant and positive (i.e., favorable) 

effect on a relevant outcome; 

(C) Includes no overriding statistically 

significant and negative effects on 

relevant outcomes reported in the study 

or in a corresponding WWC 

intervention report prepared under 

version 2.1, 3.0, 4.0, 4.1, or 5.0 of the 

WWC Handbooks; and 

(D) Is based on a sample from more 

than one site (such as a State, county, 

city, LEA, school, or postsecondary 

campus) and includes at least 350 

students or other individuals across 

sites. Multiple studies of the same 

project component that each meet the 

requirements in paragraphs (iii)(A) 

through (C) of this definition may 

together satisfy the requirement in this 

paragraph (iii)(D). 

National level means the level of 

scope or effectiveness of a project 

component that is able to be effective in 

a wide variety of communities, 

including rural and urban areas, as well 

as groups with different characteristics 

(such as socioeconomic status, race, 

ethnic, gender, disability, language, and 

migrant populations), populations, and 

settings. 

* * * * * 


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Federal Register / Vol. 89, No. 8 / Thursday, January 11, 2024 / Proposed Rules 2027 

Peer-reviewed scholarly publication 

means a final peer-reviewed manuscript 

accepted for publication, that arises 

from research funded, either fully or 

partially, by Federal funds awarded 

through a Department-managed grant, 

contract, or other agreement. A final 

peer-reviewed manuscript is defined as 

an author’s final manuscript of a peerreviewed scholarly paper accepted for 

publication, including all modifications 

resulting from the peer review process. 

The final peer-reviewed manuscript is 

not the same as the final published 

article, which is defined as a publisher’s 

authoritative copy of the paper 

including all modifications from the 

publishing peer review process, 

copyediting, stylistic edits, and 

formatting changes. However, the 

content included in both the final peerreviewed manuscript and the final 

published article, including all findings, 

tables, and figures should be identical. 

* * * * * 

Promising evidence means evidence 

of the effectiveness of a key project 

component in improving a relevant 

outcome, based on a relevant finding 

from one of the following: 

(i) A practice guide prepared by the 

WWC reporting ‘‘strong evidence’’, 

‘‘moderate evidence’’, or ‘‘promising 

evidence’’ for the corresponding 

practice guide recommendation; 

(ii) An intervention report prepared 

by the WWC reporting ‘‘Tier 1 strong 

evidence’’ of effectiveness, or ‘‘Tier 2 

moderate evidence’’ of effectiveness, or 

‘‘Tier 3 promising evidence’’ of 

effectiveness, or a ‘‘positive effect,’’ or 

‘‘potentially positive effect’’ on a 

relevant outcome, with no reporting of 

a ‘‘negative effect’’ or ‘‘potentially 

negative effect’’ on a relevant outcome; 

or 

(iii) A single study assessed by the 

Department, as appropriate, that—- 

(A) Is an experimental study, a quasiexperimental design study, or a welldesigned and well-implemented 

correlational study with statistical 

controls for selection bias (such as a 

study using regression methods to 

account for differences between a 

treatment group and a comparison 

group); 

(B) Includes at least one statistically 

significant and positive (i.e., favorable) 

effect on a relevant outcome; and 

(C) Includes no overriding statistically 

significant and negative effects on 

relevant outcomes reported in the study 

or in a corresponding WWC 

intervention report. 

* * * * * 

Quality data encompasses utility, 

objectivity, and integrity of the 

information. ‘‘Utility’’ refers to how the 

data will be used, either for its intended 

use or other uses. ‘‘Objectivity’’ refers to 

data being accurate, complete, reliable, 

and unbiased. ‘‘Integrity’’ refers to the 

protection of data from being 

manipulated. 

* * * * * 

Regional level means the level of 

scope or effectiveness of a project 

component that is able to serve a variety 

of communities within a State or 

multiple States, including rural and 

urban areas, as well as groups with 

different characteristics (such as 

socioeconomic status, race, ethnicity, 

gender, disability, language, and 

migrant status). For an LEA-based 

project, to be considered a regional-level 

project, a project component must serve 

students in more than one LEA, unless 

the project component is implemented 

in a State in which the State educational 

agency is the sole educational agency 

for all schools. 

* * * * * 

State means any of the 50 States, the 

Commonwealth of Puerto Rico, the 

District of Columbia, Guam, American 

Samoa, the U.S. Virgin Islands, and the 

Commonwealth of the Northern Mariana 

Islands. 

* * * * * 

Strong evidence means evidence of 

the effectiveness of a key project 

component in improving a relevant 

outcome for a sample that overlaps with 

the populations and settings proposed 

to receive that component, based on a 

relevant finding from one of the 

following: 

(i) A practice guide prepared by the 

WWC using version 2.1, 3.0, 4.0, 4.1, or 

5.0 of the WWC Handbooks reporting 

‘‘strong evidence’’ for the corresponding 

practice guide recommendation; 

(ii) An intervention report prepared 

by the WWC using version 2.1, 3.0, 4.0, 

4.1, or 5.0 of the WWC Handbooks 

reporting ‘‘Tier 1 strong evidence’’ of 

effectiveness or a ‘‘positive effect’’ on a 

relevant outcome based on a sample 

including at least 350 students or other 

individuals across more than one site 

(such as a State, county, city, local 

educational agency (LEA), school, or 

postsecondary campus), with no 

reporting of a ‘‘negative effect’’ or 

‘‘potentially negative effect’’ on a 

relevant outcome; or 

(iii) A single experimental study 

reviewed and reported by the WWC 

most recently using version 2.1, 3.0, 4.0, 

4.1, or 5.0 of the WWC Handbooks, or 

otherwise assessed by the Department 

using version 5.0 of the WWC 

Handbook, as appropriate, and that— 

(A) Meets WWC standards without 

reservations; 

(B) Includes at least one statistically 

significant and positive (i.e., favorable) 

effect on a relevant outcome; 

(C) Includes no overriding statistically 

significant and negative effects on 

relevant outcomes reported in the study 

or in a corresponding WWC 

intervention report prepared under 

version 2.1, 3.0, 4.0, 4.1, or 5.0 of the 

WWC Handbooks; and 

(D) Is based on a sample from more 

than one site (such as a State, county, 

city, LEA, school, or postsecondary 

campus) and includes at least 350 

students or other individuals across 

sites. Multiple studies of the same 

project component that each meet the 

requirements in paragraphs (iii)(A) 

through (C) of this definition may 

together satisfy the requirement in this 

paragraph (iii)(D). 

* * * * * 

What Works Clearinghouse (WWC) 

Handbooks (WWC Handbooks) means 

the standards and procedures set forth 

in the WWC Procedures and Standards 

Handbook, Version 5.0, or in the WWC 

Standards Handbook, Version 4.0 or 4.1, 

or in the WWC Procedures Handbook, 

Version 4.0 or 4.1, the WWC Procedures 

and Standards Handbook, Version 3.0 or 

Version 2.1 (all incorporated by 

reference, see § 77.2). Study findings 

eligible for review under WWC 

standards can meet WWC standards 

without reservations, meet WWC 

standards with reservations, or not meet 

WWC standards. WWC practice guides 

and intervention reports include 

findings from systematic reviews of 

evidence as described in the WWC 

Handbooks documentation. 

* * * * * 

■ 162. Revise § 77.2 to read as follows: 

§ 77.2 Incorporation by reference. 

Certain material is incorporated by 

reference into this part with the 

approval of the Director of the Federal 

Register under 5 U.S.C. 552(a) and 1 

CFR part 51. All approved incorporation 

by reference (IBR) material is available 

for inspection at the Department of 

Education (the Department) and the 

National Archives and Records 

Administration (NARA). Contact the 

Department at: Institute of Education 

Sciences, National Center for Education 

Evaluation and Regional Assistance, 550 

12th Street SW, PCP–4158, Washington, 

DC 20202–5900; phone: (202) 245–6940; 

email: Contact.WWC@ed.gov. For 

information on the availability of this 

material at NARA, visit 

www.archives.gov/federal-register/cfr/ 

ibr-locations or email 


ddrumheller on DSK120RN23PROD with PROPOSALS2
2028 Federal Register / Vol. 89, No. 8 / Thursday, January 11, 2024 / Proposed Rules 

fr.inspection@nara.gov. The following 

material may be obtained from Institute 

of Education Sciences, 550 12th Street 

SW, Washington, DC 20202; phone: 

(202) 245–6940; website: http://

ies.ed.gov/ncee/wwc/Handbooks: 

(b) What Works Clearinghouse 

Procedures and Standards Handbook, 

Version 5.0, August 2022 (Revised 

December 2022); IBR approved for 

§ 77.1. 

(c) What Works Clearinghouse 

Standards Handbook, Version 4.1, 

January 2020, IBR approved for § 77.1. 

(d) What Works Clearinghouse 

Procedures Handbook, Version 4.1, 

January 2020, IBR approved for § 77.1. 

(e) What Works Clearinghouse 

Standards Handbook, Version 4.0, 

October 2017, IBR approved for § 77.1. 

(f) What Works Clearinghouse 

Procedures Handbook, Version 4.0, 

October 2017, IBR approved for § 77.1. 

(g) What Works Clearinghouse 

Procedures and Standards Handbook, 

Version 3.0, March 2014, IBR approved 

for § 77.1. 

(h) What Works Clearinghouse 

Procedures and Standards Handbook, 

Version 2.1, September 2011, IBR 

approved for § 77.1. 

PART 79—INTERGOVERNMENTAL 

REVIEW OF DEPARTMENT OF 

EDUCATION PROGRAMS AND 

ACTIVITIES 

■ 163. The authority citation for part 79 

continues to read as follows: 

Authority: 31 U.S.C. 6506; 42 U.S.C. 3334; 

and E.O. 12372, unless otherwise noted. 

Section 79.2 also issued under E.O. 12372. 

■ 164. In part 79, remove the word 

‘‘state’’ wherever it appears and in its 

place add the word ‘‘State’’ and remove 

the word ‘‘states’’ where it appears and 

in its place add the word ‘‘States’’. 

§ 79.1 [Amended] 

■ 165. Amend § 79.1 by removing the 

second sentence in paragraph (a). 

■ 166. Amend § 79.2 by: 

■ a. Removing the definitions of 

‘‘Department’’ and ‘‘Secretary’’. 

■ b. Revising the definition of ‘‘State’’. 

■ c. Removing the parenthetical 

authority citation at the end of the 

section. 

The revision reads as follows: 

§ 79.2 What definitions apply to these 

regulations? 

* * * * * 

State means any of the 50 States, the 

Commonwealth of Puerto Rico, the 

District of Columbia, Guam, American 

Samoa, the U.S. Virgin Islands, and the 

Commonwealth of the Northern Mariana 

Islands. 

§ 79.3 [Amended] 

■ 167. Amend § 79.3 by: 

■ a. In paragraph (a), removing the 

words ‘‘and identifies which of these are 

subject to the requirements of section 

204 of the Demonstration Cities and 

Metropolitan Development Act’’; 

■ b. In paragraph (c)(6), removing the 

words ‘‘(e.g., block grants under Chapter 

2 of the Education Consolidation and 

Improvement Act of 1981)’’; and 

c. In paragraph (c)(7), removing the 

words ‘‘development national’’ and 

adding in their place the words 

‘‘development that is national’’. 

§ 79.4 [Amended] 

■ 168. Amend § 79.4 in paragraph (b)(3) 

by removing the word ‘‘official’s’’ and 

adding in its place the word ‘‘officials’ ’’. 

§ 79.5 [Amended] 

■ 169. Amend § 79.5 by removing the 

word ‘‘assure’’ and adding in its place 

the word ‘‘ensure’’. 

§ 79.6 [Amended] 

■ 170. Amend § 79.6 by removing the 

word ‘‘state’s’’ and adding in its place 

the word ‘‘State’s’’. 

§ 79.8 [Amended] 

■ 171. Amend § 79.8 by removing 

paragraph (d). 

§ 79.9 [Amended] 

■ 172. Amend § 79.9 in paragraph (e) by 

removing the words ‘‘of this part’’. 

§ 79.10 [Amended] 

■ 173. Amend § 79.10 in paragraph 

(a)(2) by removing the words ‘‘a 

mutually agreeable solution with the 

state process’’ and adding in their place 

the words ‘‘an agreement with the 

State’’. 

PART 299—GENERAL PROVISIONS 

■ 174. The authority citation for part 

299 is revised to read as follows: 

Authority: 20 U.S.C. 1221e–3 and 3474, 

unless otherwise noted. 

Section 299.4 also issued under 20 U.S.C. 

7821 and 7823. 

Section 299.5 also issued under 20 U.S.C. 

7428(c), 7801(11), 7901. 

Section 299.6 also issued under 20 U.S.C. 

7881. 

Section 299.7 also issued under 20 U.S.C. 

7881. 

Section 299.8 also issued under 20 U.S.C. 

7881. 

Section 299.9 also issued under 20 U.S.C. 

7881. 

Section 299.10 also issued under 20 U.S.C. 

7881. 

Section 299.11 also issued under 20 U.S.C. 

7881. 

Section 299.12 also issued under 20 U.S.C. 

7881(a)(3)(B). 

Section 299.13 also issued under 20 U.S.C. 

7844(a)(3)(C), 7883. 

Section 299.14 also issued under 20 U.S.C. 

7844(a)(3)(C), 7883. 

Section 299.15 also issued under 20 U.S.C. 

7844(a)(3)(C), 7883. 

Section 299.16 also issued under 20 U.S.C. 

7883. 

Section 299.17 also issued under 20 U.S.C. 

7883. 

Section 299.18 issued under 20 U.S.C. 

6320(e), 7882, and 7883. 

Section 299.19 issued under 20 U.S.C. 

6320(e) and 7882(a). 

Section 299.20 issued under 20 U.S.C. 

6320(b)(6) and (e), 7881(c)(6), 7882, and 

7883. 

Section 299.21 issued under 20 U.S.C. 

7884(a)(1). 

Section 299.22 issued under 20 U.S.C. 

7884(a)(1). 

Section 299.23 issued under 20 U.S.C. 

7884(a)(1). 

Section 299.24 issued under 20 U.S.C. 

7884(a)(1). 

Section 299.25 issued under 20 U.S.C. 

7884(a)(1). 

Section 299.26 issued under 20 U.S.C. 

7884(a)(1). 

Section 299.27 issued under 20 U.S.C. 

7884(a)(2). 

Section 299.28 issued under 20 U.S.C. 

7884(b). 

§ 299.6 [Amended] 

■ 175. Amend § 299.6 by removing 

paragraph (c). 

§ § 299.7 through 299.13 [Redesignated as 

§§ 299.9 through 299.15] 

■ 176. Redesignate §§ 299.7 through 

299.13 as §§ 299.9 through 299.15. 

■ 177. Add new §§ 299.7 and 299.8 to 

subpart E to read as follows: 

§ 299.7 What are the requirements for 

consultation? 

(a)(1) In order to have timely and 

meaningful consultation, an agency, 

consortium, or entity must— 

(i) Consult with appropriate private 

school officials during the design and 

development of the agency, consortium, 

or entity’s program for eligible private 

school children and their teachers and 

other educational personnel; and 

(ii) Consult before the agency, 

consortium, or entity makes any 

decision that affects the opportunities of 

eligible private school children and 

their teachers and other educational 

personnel to participate in the 

applicable program. 

(2) Such consultation must continue 

throughout the implementation and 

assessment of equitable services. 

(b) Both the agency, consortium, or 

entity and private school officials must 

have the goal of reaching agreement on 

how to provide equitable and effective 

programs for private school children 

and their teachers and other educational 

personnel, including, at a minimum, on 

issues such as— 


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(1) How the agency, consortium, or 

entity will identify the needs of eligible 

private school children and their 

teachers and other educational 

personnel; 

(2) What services the agency, 

consortium, or entity will offer to 

eligible private school children and 

their teachers and other educational 

personnel; 

(3) How and when the agency, 

consortium, or entity will make 

decisions about the delivery of services; 

(4) How, where, and by whom the 

agency, consortium, or entity will 

provide services to eligible private 

school children and their teachers and 

other educational personnel; 

(5) How the agency, consortium, or 

entity will assess the services and use 

the results of the assessment to improve 

those services; 

(6) Whether the agency, consortium, 

or entity will provide services directly 

or through a separate government 

agency, consortium, entity, or thirdparty contractor; 

(7) The size and scope of the equitable 

services that the agency, consortium, or 

entity will provide to eligible private 

school children and their teachers and 

other educational personnel, the amount 

of funds available for those services, and 

how that amount is determined; and 

(8) Whether to provide equitable 

services to eligible private school 

children and their teachers and other 

educational personnel— 

(i) On a school-by-school basis; 

(ii) By creating a pool or pools of 

funds with all the funds allocated under 

the applicable program based on the 

amount of funding allocated for 

equitable services to two or more 

participating private schools served by 

the same agency, consortium, or entity, 

provided that all the affected private 

schools agree to receive services in this 

way; or 

(iii) By creating a pool or pools of 

funds with all the funds allocated under 

the applicable program based on the 

amount of funding allocated for 

equitable services to two or more 

participating private schools served 

across multiple agencies, consortia, or 

entities, provided that all the affected 

private schools agree to receive services 

in this way. 

(c)(1) Consultation must include— 

(i) A discussion of service delivery 

mechanisms the agency, consortium, or 

entity can use to provide equitable 

services to eligible private school 

children and their teachers and other 

educational personnel; and 

(ii) A thorough consideration and 

analysis of the views of private school 

officials on the provision of services 

through a contract with a third-party 

provider. 

(2) If the agency, consortium, or entity 

disagrees with the views of private 

school officials on the provision of 

services through a contract, the agency, 

consortium, or entity must provide in 

writing to the private school officials the 

reasons why the agency, consortium, or 

entity chooses not to use a contractor. 

(d)(1) The agency, consortium, or 

entity must maintain in its records and 

provide to the SEA a written 

affirmation, signed by officials of each 

private school with participating 

children or appropriate private school 

representatives, that the required 

consultation has occurred. The written 

affirmation shall provide the option for 

private school officials to indicate such 

officials’ belief that timely and 

meaningful consultation has not 

occurred or that the program design is 

not equitable with respect to eligible 

private school children. 

(2) If private school officials do not 

provide the affirmations within a 

reasonable period of time, the agency, 

consortium, or entity must submit to the 

SEA documentation that the required 

consultation occurred. 

(e) A private school official has the 

right to complain to the SEA that the 

agency, consortium, or entity did not— 

(1) Engage in timely and meaningful 

consultation; 

(2) Give due consideration to the 

views of the private school official; or 

(3) Make a decision that treats the 

private school or its students equitably 

as required by this section. 

§ 299.8 Use of Private School Personnel. 

A grantee or subgrantee may use 

program funds to pay for the services of 

an employee of a private school if: 

(a) The employee performs the 

services outside of his or her regular 

hours of duty; and 

(b) The employee performs the 

services under public supervision and 

control. 

■ 178. Transfer newly redesignated 

§ 299.12 from subpart F to subpart E and 

revise it to read as follows: 

§ 299.12 Ombudsman. 

To help ensure equity for eligible 

private school children, teachers, and 

other educational personnel, an SEA 

must direct the ombudsman designated 

under section 1117 of the ESEA and 

§ 200.68 to monitor and enforce the 

requirements in §§ 299.6–299.11. 

■ 179. Add §§ 299.16 and 299.17 to 

subpart F to read as follows: 

§ 299.16 What must an SEA include in its 

written resolution of a complaint? 

An SEA must include the following in 

its written resolution of a complaint 

under an applicable program: 

(a) A description of applicable 

statutory and regulatory requirements. 

(b) A description of the procedural 

history of the complaint. 

(c) Findings of fact supported by 

citation, including page numbers, to 

supporting documents under paragraph 

(g) of this section. 

(d) Legal analysis and conclusions. 

(e) Corrective actions, if applicable. 

(f) A statement of applicable appeal 

rights. 

(g) A statement regarding the State’s 

determination about whether it will 

provide services. 

(h) All documents reviewed by the 

SEA in reaching its decision, paginated 

consecutively. 

§ 299.17 What must a party seeking to 

appeal an SEA’s written resolution of a 

complaint or failure to resolve a complaint 

in 45 days include in its appeal request? 

(a) A party appealing an SEA’s written 

resolution of a complaint, or failure to 

resolve a complaint, must include the 

following in its request within 30 days 

of either the SEA’s resolution or the 45- 

day time limit: 

(i) A clear and concise statement of 

the parts of the SEA’s decision being 

appealed, if applicable. 

(ii) The legal and factual basis for the 

appeal. 

(iii) A copy of the complaint filed 

with the SEA. 

(iv) A copy of the SEA’s written 

resolution of the complaint being 

appealed, if one is available, including 

all supporting documentation required 

under § 299.16(h). 

(v) Any supporting documentation 

not included as part of the SEA’s 

written resolution of the complaint 

being appealed. 

(b) Unless substantiating 

documentation identified in paragraph 

(a) of this section is provided to the 

Department, the appeal is not 

considered complete. Statutory or 

regulatory time limits are stayed until 

the appeal is complete as determined by 

the Department. 

(c) In resolving the appeal, if the 

Department determines that additional 

information is necessary, all applicable 

statutory or regulatory time limits are 

stayed pending receipt of that 

information. 

■ 180. Add subpart G part 299 to read 

as follows: 

Subpart G—Procedures for Bypass 

Sec. 

299.18 Applicability. 


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299.19 Bypass—general. 

299.20 Requesting a bypass. 

299.21 Notice of intent to implement a 

bypass. 

299.22 Filing requirements. 

299.23 Bypass procedures. 

299.24 Appointment and functions of a 

hearing officer. 

299.25 Hearing procedures. 

299.26 Decision. 

299.27 Judicial review. 

299.28 Continuation of a bypass. 

Subpart G—Procedures for Bypass 

§ 299.18 Applicability. 

The regulations in this subpart apply 

to part A of Title I and applicable 

programs under section 8501(b)(1) of the 

ESEA under which the Secretary is 

authorized to waive the requirements 

for providing services to private school 

children, teachers or other educational 

personnel, and families, as applicable, 

and to implement a bypass. 

§ 299.19 Bypass—general. 

(a) The Secretary arranges for a bypass 

if— 

(1) An agency, consortium, or entity is 

prohibited by law from providing for the 

participation in programs of children 

enrolled in, or teachers or other 

educational personnel from, private 

elementary and secondary schools, on 

an equitable basis; or 

(2) The Secretary determines that the 

agency, consortium, or entity has 

substantially failed, or is unwilling, to 

provide for that participation as 

required by section 1117 or 8501 of the 

ESEA, as applicable. 

(b) If the Secretary determines that a 

bypass is appropriate after following the 

requirements in §§ 299.21 through 

299.26, the Secretary— 

(1) Waives the requirements under 

section 1117 or 8501 of the ESEA, as 

applicable, for the agency, consortium, 

or entity; and 

(2) Arranges for the provision of 

equitable services to those children, 

teachers or other educational personnel, 

and families, as applicable, through 

arrangements subject to the 

requirements of section 1117 or 8501 of 

the ESEA, as applicable, and sections 

8503 and 8504 of the ESEA. 

§ 299.20 Requesting a bypass. 

(a) A private school official may 

request a bypass of an agency, 

consortium, or entity under the 

following circumstances: 

(1) The private school official has— 

(i) Filed a complaint with the State 

educational agency (SEA) under section 

1117(b)(6)(A)–(B) or section 

8501(c)(6)(A)–(B) of the ESEA and 

§§ 299.13 through 299.17 that an 

agency, consortium, or entity other than 

the SEA has substantially failed or is 

unwilling to provide equitable services; 

(ii) Requested that the SEA provide 

equitable services on behalf of the 

agency, consortium, or entity under 

section 1117(b)(6)(C) or section 

8501(c)(6)(C) of the ESEA; and 

(iii) Submitted an appeal of the SEA’s 

resolution of the complaint filed under 

this paragraph (a)(1) to the Secretary 

under section 8503(b) of the ESEA and 

§ 299.17. 

(2) If an SEA has substantially failed, 

or is unwilling, to provide equitable 

services, the private school official 

has— 

(i) Filed a complaint with the SEA 

under section 8503(a) of the ESEA and 

§§ 299.13 through 299.16; and 

(ii) Submitted an appeal to the 

Secretary under section 8503(b) of the 

ESEA and § 299.17 of the SEA’s 

resolution of the complaint filed under 

paragraph (a)(1) of this section in which 

the private school official requests a 

bypass. 

(b) An agency, consortium, or entity 

may request that the Secretary 

implement a bypass if the agency, 

consortium, or entity is prohibited by 

law from providing equitable services 

under section 1117 or section 8501 of 

the ESEA. 

§ 299.21 Notice of intent to implement a 

bypass. 

(a) Before taking any final action to 

implement a bypass, the Secretary 

provides the affected agency, 

consortium, or entity with written 

notice. 

(b) In the written notice, the 

Secretary— 

(1) States the reasons for the proposed 

bypass in sufficient detail to allow the 

agency, consortium, or entity to 

respond; 

(2) Cites the requirement that is the 

basis for the alleged failure to comply; 

and 

(3) Advises the agency, consortium, or 

entity that it— 

(i) Has a deadline (which shall not be 

fewer than 45 days after receiving the 

written notice) to submit written 

objections to the proposed bypass; and 

(ii) May request in writing the 

opportunity for a hearing to show cause 

why the Secretary should not 

implement the bypass. 

§ 299.22 Filing requirements. 

(a) Any written submission under 

§ 299.21 must be filed by hand delivery, 

mail, or email. 

(b) The filing date for a written 

submission is the date on which the 

document is— 

(1) Hand delivered; 

(2) Mailed; or 

(3) Emailed. 

§ 299.23 Bypass procedures. 

Sections 299.24 through 299.26 

describe the procedures that the 

Secretary uses in conducting a showcause hearing. The hearing officer may 

modify the procedures for a particular 

case if all parties agree that the 

modification is appropriate. 

§ 299.24 Appointment and functions of a 

hearing officer. 

(a) If an agency, consortium, or entity 

requests a hearing to show cause why 

the Secretary should not implement a 

bypass, the Secretary appoints a hearing 

officer and notifies appropriate 

representatives of the affected private 

school children, teachers or other 

educational personnel, or families that 

they may participate in the hearing. 

(b) The hearing officer has no 

authority to require or conduct 

discovery or to rule on the validity of 

any statute or regulation. 

(c) The hearing officer notifies the 

agency, consortium, or entity and 

representatives of the private school 

children, teachers or other educational 

personnel, or families of the time and 

place of the hearing. 

§ 299.25 Hearing procedures. 

(a) The following procedures apply to 

a show-cause hearing regarding 

implementation of a bypass: 

(1) The hearing officer arranges for a 

transcript to be created. 

(2) The agency, consortium, or entity 

and representatives of the private school 

children, teachers or other educational 

personnel, or families each may— 

(i) Be represented by legal counsel; 

and 

(ii) Submit oral or written evidence 

and arguments at the hearing. 

(b) Within 10 days after the hearing, 

the hearing officer— 

(1) Indicates that a decision will be 

issued based on the existing record; or 

(2) Requests further information from 

the agency, consortium, or entity, 

representatives of the private school 

children, teachers or other educational 

personnel, or families, or Department 

officials. 

§ 299.26 Decision. 

(a)(1) Within 120 days after the record 

of a show-cause hearing is closed, the 

hearing officer issues a written decision 

on whether the Secretary should 

implement a bypass. 

(2) The hearing officer sends copies of 

the decision to the agency, consortium, 

or entity; representatives of the private 

school children, teachers or other 


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educational personnel, or families; and 

the Secretary. 

(b) Within 30 days after receiving the 

hearing officer’s decision, the agency, 

consortium, or entity, and 

representatives of the private school 

children, teachers or other educational 

personnel, or families may each submit 

to the Secretary written comments on 

the decision. 

(c) The Secretary may adopt, reverse, 

modify, or remand the hearing officer’s 

decision. 

§ 299.27 Judicial review. 

If an agency, consortium, or entity is 

dissatisfied with the Secretary’s final 

action after a proceeding under 

§§ 299.13 through 299.26, it may, within 

60 days after receiving notice of that 

action, file a petition for review with the 

United States Court of Appeals for the 

circuit in which it is located. 

§ 299.28 Continuation of a bypass. 

The Secretary continues a bypass 

until the Secretary determines, in 

consultation with the relevant agency, 

consortium, or entity and 

representatives of the affected private 

school children, teachers or other 

educational personnel, or families, that 

there will no longer be any failure or 

inability on the part of the agency, 

consortium, or entity to meet the 

requirements for providing services. 

[FR Doc. 2023–27682 Filed 1–10–24; 8:45 am] 

BILLING CODE 4000–01–P 


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